text:
    Connecticut State Medical Society et al. v. Connecticut Board of Examiners in Podiatry et al.
    (12938)
    Peters, C. J., Healey, Shea, Santaniello and Kulawiz, Js.
    Argued February 6
    decision released April 21, 1987

      Linda L. Randell, with whom was Jeanette C. Schreiber, for the appellants (plaintiffs).

      Elizabeth Harrison Hadley, assistant attorney general, with whom were Richard J. Lynch, assistant attorney general, and, on the brief, Joseph I. Lieberman, attorney general, for the appellees (named defendant et al.).

      Eric Watt Wiechmann, with whom were Brian T. Foley and, on the brief, William H. Narwold, for the appellees (defendant Stephen Perlmutter et al.).
   Shea, J.

The issues in this appeal are whether a medical society and one of its physician members have standing to appeal from a declaratory ruling of the board of examiners in podiatry regarding the scope of podiatry practice in Connecticut. Holding that the plaintiffs had failed to allege sufficient grounds to establish aggrievement, the Superior Court rendered judgment dismissing the appeal. The plaintiffs are the Connecticut State Medical Society (medical society), a nonprofit organization of physicians in which membership is voluntary, and Enzo Sella, a physician member of the medical society specializing in orthopedics whose practice includes the diagnosis and treatment of medical problems of the ankle. The defendants are the board of examiners in podiatry (board), the commissioner of health services, and three podiatrists who had been parties to the declaratory ruling proceeding before the board. We find error in the conclusion of the court that the plaintiffs lack standing.

The complaint alleges that in January, 1984, the Connecticut General Life Insurance Company, a Medicare intermediary, issued a bulletin stating that, because the practice of podiatrists is limited to the diagnosis, prevention and treatment of foot ailments, Medicare would not pay for services provided by podiatrists involving problems of the ankle. In March, 1984, in response to the bulletin, the board requested the attorney general to issue a legal opinion on whether treatment of the ankle is within the scope of podiatry practice as defined by General Statutes § 20-50. Indieating that resolution of that question would entail a factual determination regarding the relation between the foot and the ankle, the attorney general declined to issue the requested ruling.

Pursuant to General Statutes § 4-176, the board subsequently held a hearing and then, on June 27, 1985, issued a declaratory ruling that, because “the ankle is part of the foot, and the foot is part of the ankle,” the treatment of ankle problems is within the scope of podiatry practice in Connecticut. Claiming that the ruling was arbitrary and capricious, clearly erroneous, in excess of the statutory authority of the board, and made upon unlawful procedure in violation of constitutional and statutory provisions, the plaintiffs appealed to the Superior Court pursuant to General Statutes § 4-183. The defendants filed motions to dismiss, alleging that the plaintiffs were not aggrieved within the meaning of §§ 4-176 and 4-183, and that the court therefore lacked jurisdiction over the subject matter. The court granted the defendants’ motions to dismiss in respect to both plaintiffs. From the judgment the plaintiffs have appealed.

I

We first address the issue of whether the motions to dismiss were properly granted in respect to the plaintiff physician, Enzo Sella. “A motion to dismiss properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.” (Emphasis in original.) Baskin’s Appeal from Probate, 194 Conn. 635, 640, 484 A.2d 934 (1984). Unless Sella could establish that he was aggrieved, he had no standing to appeal. General Statutes §§ 4-176, 4-183; Hughes v. Town Planning & Zoning Commission, 156 Conn. 505, 508, 242 A.2d 705 (1968).

The complaint alleges that the declaratory ruling of the board “is likely to cause a substantial reduction in the quality of medical care rendered in Connecticut to persons suffering from problems of the ankle,” and that the ruling “endangers the health of Connecticut residents who may rely on podiatrists for medical care of such problems . . . .” The complaint further states that Sella will suffer a loss of revenues because patients will seek treatment of ankle problems from podiatrists rather than physicians. The trial court held these grounds insufficient to establish Sella’s aggrievement, and also rejected the additional ground set forth in the plaintiffs’ memorandum in opposition to the motions to dismiss, that, as a physician, Sella has a constitutionally protected property interest in the practice of medicine that “should confer standing and aggrievement for challenges of encroachment upon his professional interests.”

“ ‘The fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, “the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision.”. . ” Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 47, 478 A.2d 601 (1984); Bakelaar v. West Haven, 193 Conn. 59, 65, 475 A.2d 283 (1984). “Aggrievement is established if ‘there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected.’ O’Leary v. McGuinness, 140 Conn. 80, 83, 98 A.2d 660 (1953).” Hall v. Planning Commission, 181 Conn. 442, 445, 435 A.2d 975 (1980).

Neither the trial court nor the defendants have seriously challenged the notion that physicians such as Sella have a legally protected property interest in the practice of medicine. A licensed physician has a “right and estate in his profession” of which he cannot be deprived without due process of law. Dent v. West Virginia, 129 U.S. 114, 123, 9 S. Ct. 231, 32 L. Ed. 623 (1889). “The right of a physician to practice his profession is a property right, of which he cannot be arbitrarily deprived.” Butcher v. Maybury, 8 F.2d 155, 158 (W.D. Wash. 1925). “Cases are legion holding, in one way or another, that the right of a licentiate to practice his profession is a property right, or a right in the nature of a property right, or a valuable franchise, or a valuable privilege.” Sloan v. Mitchell, 113 W. Va. 506, 509-10, 168 S.E. 800 (1933); see also Board of Regents of State Colleges v. Roth, 408 U.S. 564, 576-78, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); Lee v. Board of Education, 181 Conn. 69, 72, 434 A.2d 333 (1980); Burden v. Hoover, 9 Ill. 2d 114, 118, 137 N.E.2d 59 (1956). Thus, the first prong of the test for determining aggrievement, the existence of a specific personal and legal interest in the subject matter of the decision, has been satisfied with respect to this plaintiff.

We next address the principal issue in this appeal, whether Sella’s legal interest in the practice of medicine has been “specially and injuriously affected” by the declaratory ruling of the board. The trial court held that a loss of future revenues, as alleged on Sella’s behalf, “is but a prospective and speculative injury, and therefore is insufficient to support a finding of aggrievement.”

Ordinarily, an allegation that a governmental action will result in competition harmful to the complainant’s business would not be sufficient to qualify the complainant as an aggrieved person. See Gregorio v. Zoning Board of Appeals, 155 Conn. 422, 426, 232 A.2d 330 (1967); Whitney Theatre Co. v. Zoning Board of Appeals, 150 Conn. 285, 288, 189 A.2d 396 (1963); London v. Planning & Zoning Commission, 149 Conn. 282, 284, 179 A.2d 614 (1962). The defendants cite as highly significant the recent decision of the United States Supreme Court in Diamond v. Charles, 476 U.S. 54, 106 S. Ct. 1697, 90 L. Ed. 2d 48 (1986), for the proposition that a speculative loss of revenue is insufficient to confer standing. Diamond involved an appeal by a physician from a ruling of the Court of Appeals for the Seventh Circuit affirming the granting of a permanent injunction against enforcement of several sections of the Illinois Abortion Law of 1975, as amended. Ill. Rev. Stat. c. 38, §§ 81-21 through 81-34 (1983). In support of his claim of standing, the physician, a pediatrician, alleged, inter alia, that, because enforcement of the abortion Jaw would result in fewer abortions, the pool of potential fee-paying patients would be enlarged. Diamond v. Charles, supra, 66. The United States Supreme Court rejected this claim because “[t]he possibilities that such fetuses would survive and then find their way as patients to Diamond are speculative, and ‘unadorned speculation will not suffice to invoke the federal judicial power.’ Simon v. Eastern Kentucky Welfare Rights Org., [426 U.S. 26, 44, 96 S. Ct. 1917, 48 L. Ed. 2d 450 (1976)].” Diamond v. Charles, supra. We are not convinced, however, that these state and federal precedents control our disposition of the present case.

It is a principle of common law that “[o]ne who causes loss of business or occupation to another merely by engaging in a business or occupation in good faith is not liable to the other for the loss so caused, though he knows that the loss will result.” 3 Restatement, Torts § 708, p. 519. “It is only ‘unfair’ competition that is prohibited.” 1 F. Harper & F. James, Jr., Torts (1956) § 6.13, p. 517. These substantive principles have engendered correlative jurisdictional rules. Although an allegation merely of competition likely to result in lost revenues is ordinarily insufficient to confer standing, this court has frequently assumed jurisdiction as a matter of course over claims of unfair or illegal competition. See Shop-Rite Durable Supermarket, Inc. v. Mott’s Shop Rite, 173 Conn. 261, 265, 377 A.2d 312 (1977); Yale Co-operative Corporation v. Rogin, 133 Conn. 563, 571, 53 A.2d 383 (1947); Middletown Trust Co. v. Middletown National Bank, 110 Conn. 13, 20, 147 A. 22 (1929); Skene v. Carayanis, 103 Conn. 708, 714, 131 A. 497 (1926); cf. Sportsmen’s Boating Corporation v. Hensley, 192 Conn. 747, 754-55, 474 A.2d 780 (1984).

Thus, it has been stated that “[w]hile we readily accept the premise that physicians . . . have ‘no legally recognized interest in being free from competition . . . ’ ASI, Inc. v. Florida Public Service Commission, 334 So. 2d 594, 596 (Fla. 1976), it by no means follows that the assertion of interest economic in nature can never furnish the basis for standing to challenge proposed or adopted agency rules.” Florida Medical Assn. v. Department of Professional Regulation, 426 So. 2d 1112, 1115 (Fla. App. 1983). Accordingly, the court in Florida Medical Assn, distinguished the case before it, in which it had been contended that a proposed agency rule allowing optometrists to prescribe certain drugs would be illegal, from several other cases involving solely claims by competitors of harm to economic interests in which relief had been denied because of a lack of standing. “It must be borne in mind,” said another court, “that it has always been held that a professional man has standing to prevent the improper invasion of his profession.” (Emphasis added.) Felix v. Wax, 13 Pa. D. & C. 2d 600, 604 (1958); see also Norville v. Mississippi State Medical Assn., 364 So. 2d 1084, 1090 (Miss. 1978); Day v. Inland Empire Optical, Inc., 76 Wash. 2d 407, 416-17, 456 P.2d 1011 (1969); Sloan v. Mitchell, supra.

Because the plaintiff Sella has effectively alleged that his anticipated loss of revenues upon the ruling of the board would result from competition that is unfair or illegal, we conclude that Sella has standing to appeal that ruling. Although those paragraphs of the complaint that expressly attempt to establish the plaintiffs’ aggrievement do not specifically mention unfair or illegal competition, such an allegation is necessarily implied from various remaining portions of the complaint. See Lamb v. Burns, 202 Conn. 158, 172, 520 A.2d 190 (1987); Trichilo v. Trichilo, 190 Conn. 774, 779, 462 A.2d 1048 (1983). The complaint alleges, for instance, that the board was without authority to expand the practice of podiatry, which “is expressly limited by statute to diagnosis and treatment of ‘foot’ ailments and surgery upon the ‘feet,’ ” to include the treatment of ankle disorders. Elsewhere, the board’s ruling is labeled “illegal.” In any event, the plaintiffs, in their memorandum in opposition to the motions to dismiss, expressly contended that the treatment of problems of the ankle by podiatrists “amounts to the unlawful encroachment upon the right of such physicians to practice medicine.” The prospect of unfair or illegal competition is therefore clearly at issue in the plaintiffs’ appeal from the board’s declaratory ruling. We hold that the trial court erred in finding that Sella was not aggrieved within the meaning of General Statutes §§ 4-176 and 4-183.

II

The remaining issue is whether the motions to dismiss were nevertheless properly granted in respect to the plaintiff medical society. Our recent decision in Connecticut Assn. of Health Care Facilities v. Worrell, 199 Conn. 609, 508 A.2d 743 (1986), is dispositive. In Worrell, we adopted the federal standard for representational standing as delineated by the United States Supreme Court in Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 97 S. Ct. 2434, 53 L. Ed. 2d 383 (1977). “ ‘[A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.’ Id., 343.” Connecticut Assn. of Health Care Facilities v. Worrell, supra, 616.

The plaintiff medical society satisfies the three prerequisites for representational standing as set forth in Hunt and Worrell. It has been established in the first part of this opinion that Sella, a physician member of the society, has standing in his own right to bring an action against the defendants. The stated organizational purposes of the medical society, as set forth in its bylaws, include the extension of medical knowledge and the promotion of high quality medical care that benefits the public in the care and prevention of disease. This medical society’s lawsuit is germane to these purposes because an expansion of podiatry practice, if unwarranted, threatens to erode the level of medical care available to the public. Finally, neither the claim asserted nor the relief requested requires the participation of individual members of the medical society. “Because money damages are not sought for alleged injuries to the individual members, proof relating solely to the variant experiences of each [physician] resulting from the [board’s declaratory ruling] will not be necessary.”

There is error, the judgment granting the defendants’ motions to dismiss in respect to both plaintiffs is set aside and the case is remanded for further proceedings.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 20-5a. podiatry defined, requirements for surgery. Podiatry is defined to be the diagnosis, prevention and treatment of foot ailments including the prescription, administering and dispensing of drugs and controlled substances in schedules II, III, IV or V, in accordance with subsection (d) of section 21a-252, in connection therewith; the practice of surgery upon the feet, provided if an anesthetic other than a local anesthetic is required, such surgery shall be performed in a general hospital accredited by the Joint Commission on Accreditation of Hospitals by a licensed podiatrist who is accredited by the credentials committee of the medical staff of said hospital to perform podiatric surgery in conformance with rules promulgated by the chief of the surgical department of said hospital, taking into account the training, experience, demonstrated competence and judgment of each such licensed podiatrist, and such podiatrist shall comply with such rules; the dressing, padding and strapping of the feet; the making of models of the feet and the palliative and mechanical treatment of functional and structural ailments of the feet, not including the amputation of the leg, foot or toes or the treatment of systemic diseases other than local manifestations in the foot.”

       “[General Statutes] Sec. 4-176. declaratory rulings. Each agency may, in its discretion, issue declaratory rulings as to the applicability of any statutory provision or of any regulation or order of the agency, and each agency shall provide by regulation for the filing and prompt disposition of petitions seeking such rulings. If the agency issues an adverse ruling, the remedy for an aggrieved person shall be an action for declaratory judgment under section 4-175 unless the agency conducted a hearing pursuant to sections 4-177 and 4-178 for the purpose of finding facts as a basis for such ruling, in which case the remedy for an aggrieved person shall be an appeal pursuant to section 4-183. If the agency fails to exercise its discretion to issue such a ruling, such failure shall be deemed a sufficient request by the plaintiff for the purposes of section 4-175. Rulings disposing of petitions have the same status as agency decisions or orders in contested cases.”

       General Statutes § 4-183 provides in relevant part: “appeal to superior court, (a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review by way of appeal under this chapter, provided, in case of conflict between this chapter and federal statutes or regulations relating to limitations of periods of time, procedures for filing appeals or jurisdiction or venue of any court or tribunal, such federal provisions shall prevail. A preliminary, procedural or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy.
      * ** sit
      “(g) The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.”

       The court attributed the general grounds concerning the quality of medical care in Connecticut only to the plaintiff medical society. Because we hold that the allegation of a loss of revenues resulting from allegedly illegal competition is sufficient to establish Sella’s aggrievement, we need not consider the plaintiffs’ claim that the specialized training of physicians such as Sella ought to confer upon them standing to challenge such perceived threats to the general quality of medical care. For the same reason, we do not pass upon the plaintiffs’ assertion that “if physicians are not aggrieved by the Board’s decision . . . then there is no person or party who can be recognized as being aggrieved, and the Board’s decision is effectively immune from challenge.” Cf. C. Wright, The Law of Federal Courts (4th Ed. 1983) § 13, p. 67.

       Because we find Sella to be “aggrieved” under the test enunciated in several of this court’s decisions, which is set forth in the text of this opinion, we need not address the defendants’ assertion that the federal test for standing is broader than our test for aggrievement. See Nader v. Altermatt, 166 Conn. 43, 51-52, 347 A.2d 89 (1974); cf. Manchester Environmental Coalition v. Stockton, 184 Conn. 51, 64 n.15, 441 A.2d 68 (1981).


source: Caselaw Access Project

author: Arthur H. Healey, J.

license: Public Domain

text:
    Angelo Izzo v. Colonial Penn Insurance Company et al.
    (12956)
    Healey, Shea, Santaniello, Callahan and Moraghan, Js.

      Argued January 15
    decision released April 28, 1987

      Martin A. Clayman, with whom was Holly Abery-Wetstone, for the appellant (plaintiff).

      Donald G. Walsh, with whom were Michael E. Burt and, on the brief, David H. Johnson, for the appellees (defendants).
   Arthur H. Healey, J.

On March 14, 1985, the plaintiff, Angelo Izzo, brought an action for a declaratory judgment in the Superior Court. On April 7,1986, the parties, pursuant to Practice Book § 3133, filed a joint motion to reserve questions of law for the advice of the Appellate Court. The parties sought to reserve the following questions: (1) “Whether Plaintiff . . . is a separate ‘person’ entitled to an independent ‘per person’ recovery for the injury of loss of consortium within the higher ‘per occurrence’ limit under the Defendant Alice J. McGee’s automobile liability insurance policy with Defendant, Colonial Penn Insurance Company”; (2) “Whether Plaintiff’s claim for loss of consortium is a claim for ‘bodily injury’ by a person within the meaning of Defendant Alice J. McGee’s automobile liability policy with Defendant, Colonial Penn Insurance Company”; and (3) “Whether Connecticut’s Financial Responsibility Act, [General Statutes §] 14-122 super-cedes the automobile liability policy issued by Defendant, Colonial Penn Insurance Company.” On April 9, 1986, the court, O’Brien, J., granted the motion. On April 22, 1986, this court transferred the reservation to itself.

The underlying facts are stipulated as follows: On January 12, 1983, Olympia Izzo, wife of the plaintiff, was struck by a motor vehicle owned and operated by the defendant, Alice J. McGee. As a result of the accident, Olympia Izzo suffered permanent and disabling injuries, including the loss of her right leg, which was amputated above the knee. The plaintiff was not involved in the accident but, as a result of the injuries to his wife, suffered a loss of consortium.

At the time of the accident, McGee was an insured of the named defendant, Colonial Penn Insurance Company (Colonial Penn). The Colonial Penn policy in effect at the time of the accident included liability coverage limits applicable to bodily injury coverage of $100,000 “per person” and $300,000 “per occurrence.”

On March 7,1984, the plaintiff and his wife brought suit against the defendants. In February, 1985, the case was settled in favor of Olympia Izzo only, for the “per person” policy limit of $100,000 and the case was withdrawn by her and the plaintiff. As part of the settlement, the parties valued the plaintiffs loss of consortium claim at $50,000. As an additional part of the settlement, the defendants reserved the right to contest whether there was coverage under the insurance policy for the loss of consortium claim.

I

We begin our analysis, as we must, with the applicable language of the insurance policy in effect at the time of the accident. The policy then in effect stated that Colonial Penn “will pay all sums that the insured under this coverage is legally required to pay as damages for bodily injury. . . .” The “Limits of Coverage” portion of the policy stated that “[t]here are two limits of coverage for Bodily Injury Liability. The amount shown on your Declarations Page for ‘Each Person’ [$100,000] is the most We’ll pay for damages because of bodily injury to one person caused by any one occurrence. The amount shown on your Declarations Page for ‘Each Occurrence’ [$300,000] is the most we’ll pay for all damages as a result of any one occurrence, no matter how many people are injured.” (Emphasis added.) “Bodily Injury,” as defined in the policy, “means injury to a person’s body, sickness or disease, and death that results from any of these.”

Given this language of the policy, the critical question which must be addressed is whether the plaintiff’s claim for loss of consortium falls within the limits of liability for “bodily injury to one person caused by any one occurrence.” In other words, does the plaintiff’s claim arise out of bodily injury sustained by “one person” so as to make the “per person” limit applicable, or is the plaintiff’s claim a claim for bodily injury to a second person such as to invoke the “per occurrence” limit. The rule in Connecticut is that an insurance policy, like any other contract, must be given a reasonable interpretation and the words used are to be given their common, ordinary and customary meaning. Gottesman v. Aetna Ins. Co., 177 Conn. 631, 634, 418 A.2d 944 (1979); Lyon v. Aetna Casualty & Surety Co., 140 Conn. 304, 307, 99 A.2d 141 (1953). Although ambiguities are to be construed against the insurer, when the language is plain, no such construction is to be applied. Gottesman v. Aetna Ins. Co., supra; Smedley Co. v. Employers Mutual Liability Ins. Co., 143 Conn. 510, 513, 123 A.2d 755 (1956). Applying the clear language of the policy to the facts of this case, and despite the plaintiff’s statutory claims discussed below, we conclude that the $100,000 limit of liability “because of bodily injury to one person caused by any one occurrence” applies in this case. The plaintiff, therefore, is unable to avail himself of the higher “per occurrence” liability limit.

Connecticut has only recently recognized the right to recover for loss of consortium. Hopson v. Saint Mary’s Hospital, 176 Conn. 485, 408 A.2d 260 (1979). This court has not yet considered the issue of whether a provision in an insurance policy which limits the amount of an insurer’s liability because of “bodily injury” to one person applies to a claim for loss of consortium. An examination of cases from other jurisdictions, where loss of consortium has enjoyed recognition for a longer period of time, however, reveals that the majority of jurisdictions follow the principle that damages for loss of consortium, resulting from bodily injury to one person, are subject to the “per person” limitation. See, e.g., Reid v. State Farm Mutual Auto Ins. Co., 784 F.2d 577 (5th Cir. 1986); Montgomery v. Farmers Ins. Group, 585 F. Sup. 618 (S.D. Ind. 1984); Smith v. State Farm Mutual Auto Ins. Co., 252 Ark. 57, 477 S.W.2d 186 (1972); State Farm Mutual Auto Ins. Co. v. Ball, 127 Cal. App. 3d 568, 179 Cal. Rptr. 644 (1981); United Services Auto Assn. v. Warner, 64 Cal. App. 3d 957, 135 Cal. Rptr. 34 (1976); State Farm Mutual Auto Ins. Co. v. Hodges, 221 Ga. 355, 144 S.E.2d 723 (1965); Travelers Indemnity Co. v. Cornelsen, 272 Md. 48, 321 A.2d 149 (1974); New Hampshire Ins. Co. v. Bisson, 122 N.H. 747, 449 A.2d 1226 (1982); Williams v. State Farm Mutual Auto Ins. Co., 99 N.J. Super. 377, 240 A.2d 35 (1968); see also annot., 13 A.L.R.3d 1228, § 4 (1967 & Sup. 1986); 8A J. & J. Appleman, Insurance Law and Practice (1981) § 4893, p. 60; 15A G. Couch, Insurance (2d Ed.) § 56:47; but cf. Bilodeau v. Lumbermens Mutual Casualty Co., 392 Mass. 537, 467 N.E.2d 137 (1984). Although in these cases the specific policy language is not always identical to the language in the insurance policy at issue in this case, these cases hold that the “per person” limit is applicable to all claims of damage flowing from bodily injury to one person and, therefore, it is immaterial that some part of the damages may be claimed by a person other than the one suffering the bodily injury.

An often cited reason for holding that a spouse’s claim for loss of consortium is included within the “per person” limit of liability for damages because of bodily injury to one person is that the term “one person” repeatedly has been construed to refer to the person injured directly and the words “each occurrence” to include the injuries of several persons, regardless of how many persons may suffer loss. See, e.g., United Services Auto Assn. v. Warner, supra, 963. The limitation applies to all damages sustained by all persons as a result of bodily injury to one person. This construction does not render the “per occurrence” limit a nullity because that provision applies to situations where more than “one person” suffers “bodily injury” in a single occurrence. See, e.g., Gass v. Carducci, 52 Ill. App. 2d 394, 402a, 202 N.E.2d 73 (1964). It has been said that this “principle comports with sound logic and common sense.” United Services Auto Assn. v. Warner, supra. We agree.

On the stipulated facts before us, it is obvious that the plaintiff would not have a claim under this policy for damages for loss of consortium but for the bodily injury his wife sustained in the accident with McGee. A cause of action for loss of consortium does not arise out of a bodily injury to the spouse suffering the loss of consortium; it arises out of the bodily injury to the spouse who can no longer perform the spousal functions. Hopson v. Saint Mary’s Hospital, supra, 494; United Services Auto Assn. v. Warner, supra, 964; Thompson v. Grange Ins. Assn., 34 Wash. App. 151, 161-62, 660 P.2d 307 (1983). We recognized in Hopson that although loss of consortium is a separate cause of action, it is an “action [which] is derivative of the injured spouse’s cause of action.” Hopson v. Saint Mary’s Hospital, supra. Loss of consortium, although a separate cause of action, is not truly independent, but rather derivative and inextricably attached to the claim of the injured spouse. The plaintiff’s loss of consortium claim, therefore, clearly fits within the “per person” limit as it is a loss sustained “because of bodily injury to one person caused by any one occurrence.”

Although ambiguities or uncertainties in an insurance policy must be resolved against the insurer, nevertheless, the policy must be given a reasonable interpretation and the words used given their common, ordinary and customary meaning. Horak v. Middlesex Mutual Assurance Co., 181 Conn. 614, 616, 436 A.2d 783 (1980); United Services Auto Assn. v. Warner, supra. In our opinion, the language setting forth the limits of liability is clear and free from ambiguity. The “per person” limit applies to all damages resulting from bodily injury to one person, including a claim for loss of consortium.

In jurisdictions where, for purposes of the limits of dollar liability clause, a loss of consortium claim is treated separately from the claim for direct physical injury, thus allowing each claimant to recover under the higher “per occurrence” limit, the courts often have based their decisions on the language contained in the policy. In those cases, the policies spoke in terms of a limitation on damages payable because of “personal injury” to one person caused by one occurrence as opposed to damages payable because of “bodily injury” to one person. See, e.g., Malone v. Costa, 151 Fla. 144, 9 So. 2d 275 (1942); Gaouette v. Aetna Life Ins. Co., 253 App. Div. 388, 2 N.Y.S.2d 497 (1938); Sheffield v. American Indemnity Co., 245 S.C. 389, 140 S.E.2d 787 (1965). In these cases, the respective courts recognized that the phrases “bodily injuries” and “personal injury” are not synonymous. In Malone v. Costa, supra, 149, the court stated that the policy term “personal injuries” is “broader, more comprehensive and significant” than the term “bodily injury.” See Gaouette v. Aetna Life Ins. Co., supra, 389-90; see also 45 C.J.S., Insurance § 827, p. 880. The term “personal injury” is broad enough to encompass a claim for injury which is personal to the claimant, although flowing from the physical injury of another. It has been said that the term “bodily injury,” however, is narrower in that it connotes an element of personal contact. Malone v. Costa, supra; see Gaouette v. Aetna Life Ins. Co., supra; Bakker v. Aetna Life Ins. Co., 148 Misc. 162, 169, 265 N.Y.S. 231 (1933). These cases, therefore, are distinguishable from this case in that the policy issued by Colonial Penn speaks in terms of a maximum recovery for damages because of “bodily injury” to one person. A claim of loss of consortium, although a “personal injury,” is not a “bodily injury” to the claimant.

II

The plaintiff, while conceding in his brief that a claim for loss of consortium is not a claim for “bodily injury,” argues that, because of General Statutes § 14-112, the policy should be construed to cover “personal injury” claims and not merely “bodily injury” claims.

The plaintiff argues that because General Statutes § 14-112 (a) requires that if a person violates certain other statutory sections, they must provide “proof of financial responsibility to satisfy any claim for damages by reason of personal injury to . . . any one person, of twenty thousand dollars, or by reason of personal injury to . . . more than one person on account of any accident of at least forty thousand dollars,” the term “bodily injury” in the Colonial Penn policy must be expanded to encompass “personal injury.” (Emphasis added.) In support of this argument, the plaintiff quotes that portion of the policy which provides: “If your home state increases the liability coverage required under its financial responsibility law, [w]e’ll automatically increase the limits of your liability coverage.” The plaintiff therefore argues that because our financial responsibility laws require greater coverage than that otherwise made available in the policy and “although the Colonial [Penn] policy expressly covers ‘bodily injury’ [the policy] must be read to comply with the financial responsibility statute and [so] must cover ‘personal injuries’ as well.” In addition, the plaintiff argues that because the policy provides coverage for “bodily injury,” while § 14-112 requires coverage for “personal injury,” the terms of the policy are in conflict with the statute and the statute must take precedence over the language of the policy. We are unpersuaded by the plaintiff’s arguments.

General Statutes § 14-112 (a) by its terms only applies upon the violation of certain statutes. These statutes are §§ 14-222 (reckless driving), 14-224 (evasion of responsibility in operation of a motor vehicle and racing) and 14-227a (a) (operation of a motor vehicle while under the influence of alcohol or drugs). There has been no allegation by the plaintiff that any of these sections were involved in the accident of January 12, 1983.

Despite the plaintiffs assertion to the contrary, it is General Statutes § 38-175b (a) which establishes the minimum coverages that must be provided. Section 38-175b (a) specifically states that “[e]very such policy shall provide insurance in accordance with such regulations against loss resulting from the liability imposed by law, with limits not less than those specified in subsection (a) of section 14-112, for damages because of bodily injury or death of any person . . . .’’(Emphasis added.) While § 38-175b (a) refers to § 14-112 (a) for the “limits” of coverage, i.e., the dollar amount of coverage which must be afforded an insured, § 38-175b (a) requires the insurer to afford this minimum coverage for “bodily injury” not “personal injury.” We also note that § 38-175b (a) speaks to regulations enacted under § 38-175a. That section, in turn, which authorizes the insurance commissioner to adopt regulations with respect to minimum provisions in automobile liability policies, also uses the term “bodily injury.” The Colonial Penn policy providing coverage for “bodily injury” is not in conflict with our statutes. In fact, the defendant’s policy provides coverage limits of $100,000 “per person” and $300,000 “per occurrence,” amounts well above the required minimum limits of $20,000 “per person” and $40,000 “per occurrence” mandated by §§ 38-175b (a) and 14-112 (a). Because there is no conflict between our statutes and the language of the Colonial Penn policy, the policy must be read to provide coverage for “bodily injury” not “personal injury.”

The answer to each of the three questions reserved is “No.”

No costs will be taxed in this court to any party.

In this opinion the other justices concurred.

       Practice Book § 3133 (now § 4147) provides in part: “when entertained.
      “The supreme court will not entertain a reservation for its advice upon questions of law arising in an action which is not ready for final judgment, unless the question or questions presented are such as are, in the opinion of the court, reasonably certain to enter into the decision of the case, and it appears that their present determination would be in the interest of simplicity, directness and economy of judicial action.
      “All questions presented for advice shall be specific and shall be phrased so as to require a Yes or No answer.
      “A reservation shall be taken to the supreme court from those cases in which an appeal could have been taken directly to the supreme court had judgment been rendered. Reservations in cases where the proper court for the appeal cannot be determined prior to judgment shall also be taken directly to the supreme court. The advice of the appellate court on a reservation may be reviewed by the supreme court only upon the granting of certification as provided in chapter 55.”

       The settlement provided: “The Defendant, Alice J. McGee, will place into escrow in an interest bearing account the sum of FIFTEEN THOUSAND DOLLARS ($15,000.00) which the Plaintiff Angelo Izzo . . . agrees to accept, together with the interest earned thereon, as complete satisfaction of his loss of consortium claim unless, pursuant to a declaratory judgment the court finds that there is additional coverage under the insurance policy held by the Defendant, Alice J. McGee, with the Colonial Penn Insurance Company, in which case, the said Defendant’s FIFTEEN THOUSAND DOLLARS ($15,000.00) (excluding interest earned thereon which, in any event, will be retained by Angelo Izzo) will be returned to her and The Colonial Penn Insurance Company, will pay the Plaintiff, Angelo Izzo, the sum of FIFTY THOUSAND DOLLARS ($50,000.00) in addition to the interest earned on said account in full satisfaction of his claim for loss of consortium. Reference to the word ‘court’ in this paragraph includes any appellate court so that this provision will not become applicable until the judicial remedies of the parties are exhausted.”

       As part of the settlement, the defendants waived any argument that the settlement of Olympia Izzo’s claim acted to extinguish the loss of consortium claim of the plaintiff. The defendants also waived any defense of the statute of limitations.

       The policy provides that “Bodily Injury Liability Coverage includes the cost of care and damages for the loss of an injured person’s services.” The defendants do not argue that a claim for loss of consortium is not covered by the policy. Instead, the defendants argue that their liability is limited to $100,000, an amount which they have already paid.

       In their treatise, the Applemans note: “[I]t often happens that there are consequential damages, as well as the damages suffered by the injured person himself. Thus, where a wife or child is injured, the husband or parent may also suffer consequential injuries by reason of liability for hospital and doctor bills or for loss of services or consortium. But it has been held that these different types of injuries cannot be split up, in order to bring the claim within the higher policy limits; they are regarded as essentially injuries to one person, so that the lower policy limits applicable to injuries sustained by any one person would govern.” 8A J. & J. Appleman, Insurance Law and Practice (1981) § 4893, p. 60.

       General Statutes § 14-112 (a) provides: “proof of financial responsibility ON VIOLATION OF CERTAIN STATUTES, (a) WHEN COMMISSIONER shall require, exception. To entitle any person to receive or retain a motor vehicle operator’s license or a certificate of registration of any motor vehicle when, in the opinion of the commissioner, such person has violated any of the provisions of section 14-222, section 14-224 or subsection (a) of section 14-227a or any similar provision of the laws of any other state or any territory, or who has been convicted of, or has forfeited any bond taken for appearance for, or has received a suspended judgment or sentence for, a violation of any of said provisions, or who has been held or found criminally responsible in connection with any motor vehicle accident resulting in the death of any person, or who has a record on file with the commissioner which is sufficient, in the opinion of the commissioner, to require evidence of financial responsibility for the reasonable protection of other persons, the commissioner shall require from such person proof of financial responsibility to satisfy any claim for damages by reason of personal injury to, or the death of, any one person, of twenty thousand dollars, or by reason of personal injury to, or the death of, more than one person on account of any accident, of at least forty thousand dollars, and for damage to property of at least ten thousand dollars, except that, for violations of section 14-222 or section 14-224 if there is no personal injury and the property damage is under four hundred dollars, the commissioner may, in his discretion, waive such requirements. When the commissioner requires proof of financial responsibility from an operator or owner of any motor vehicle, he may require proof in the amounts herein specified for each vehicle operated or owned by such person. If any person fails to furnish such proof, the commissioner shall, until such proof is furnished, suspend or revoke the license of such person to operate a motor vehicle or refuse to return any license which has been suspended or revoked in accordance with the provisions of section 14-111 or suspend or revoke the registration of any such motor vehicle or vehicles or refuse thereafter to register any motor vehicle owned by such person or refuse to register any motor vehicle transferred by him if it does not appear to the commissioner’s satisfaction that such transfer is a bona fide sale, or, if such person is not a resident of this state, withdraw from such person the privilege of operating any motor vehicle in this state and the privilege of operation within this state of any motor vehicle owned by him. Prior to such suspension, revocation or withdrawal, notice thereof shall be given by the commissioner by a notice forwarded by bulk certified mail to the address of such person as shown by the records of the commissioner. No appeal taken from the judgment of any court shall act as a stay to any action of the commissioner authorized by the provisions of this section.”

       In oral argument before this court, the plaintiff admitted that no claim was being made that McGee had violated any of the statutes set out in General Statutes § 14-112 (a) and that Colonial Penn’s policy, admitted as an exhibit for purposes of the reservation before us, was not one filed by the insured to comply with § 14-112 (a).

       General Statutes § 38-175b (a) provides: “minimum coverages, applicability, (a) Every such policy shall provide insurance in accordance with such regulations against loss resulting from the liability imposed by law, with limits not less than those specified in subsection (a) of section 14-112, for damages because of bodily injury or death of any person and injury to or destruction of property arising out of the ownership, maintenance or use of a specific motor vehicle or motor vehicles within any state, territory, or possession of the United States of America or Canada.”


author: Dannehy, J.

text:
    Louise M. Smith v. Planning and Zoning Board of the City of Milford et al.
    (12768)
    (12872)
    Healey, Shea, Dannehy, Callahan and Stoughton, Js.
    Argued December 5, 1986
    decision released April 28, 1987

      Bruce L. Levin, for the appellant (named defendant).

      William B. Barnes, for the appellant (defendant Bic Pen Corporation).

      Stephen W. Studer, with whom, on the brief, was Richard J. Buturla, for the appellee (plaintiff).
   Dannehy, J.

These are separate appeals by the defendants from a judgment of the Appellate Court which unanimously reversed a judgment rendered upon an order of the trial court granting a motion by the defendant Bic Pen Corporation (Bic) to dismiss the plaintiff’s appeal from a decision of the defendant planning and zoning board of the city of Milford (board). Each appeal is concerned with the scope and applicability of General Statutes § 8-8 (a) providing, so far as here pertinent, that “any person owning land which abuts or is within a radius of one hundred feet of any portion of the land involved in any decision of said [zoning] board . . . may . . . take an appeal to the superior court . . . -” The question on appeal is whether a tenant for life of land abutting or within a radius of one hundred feet of land thus involved is a “person owning land” within the purview of § 8-8. The Appellate Court answered the question in the affirmative. Smith v. Planning & Zoning Board, 3 Conn. App. 550, 552, 490 A.2d 539 (1985). We reach the same conclusion.

The case was heard on a motion to dismiss. The plaintiff is the owner of a life estate in land abutting Caswell Street in Milford. The premises were formerly the property of the plaintiffs husband. In 1979, he conveyed the land to Bic by a deed in which he reserved to himself and the plaintiff a life estate during the lifetime of either or both of them. On October 5,1982, the board granted an application of Bic which requested that the name of Caswell Street be changed to Bic Drive. The plaintiff, claiming to be aggrieved, seasonably appealed from the decision of the board to the Superior Court, joining the board and Bic as parties to the appeal. Bic filed a motion to dismiss the appeal, based on the ground that “[t]he plaintiff’s specific interest as a life tenant . . . does not render her ‘aggrieved.’ ” The trial court granted the motion to dismiss the appeal, finding “that the plaintiff’s position as life tenant does not constitute record ownership of the premises in question so as to qualify the plaintiff as an aggrieved person under ... § 8-8 of the Connecticut General Statutes.” Thereafter, by final judgment, the plaintiff’s appeal was dismissed. From the judgment of dismissal the plaintiff appealed to the Appellate Session of the Superior Court. The matter was subsequently removed to the Appellate Court under General Statutes § 51-197a (c). The facts have been stated on the basis of the record of the pleadings, the trial court’s memorandum of decision and the parties’ admissions.

During the arguments before the Appellate Court the parties agreed that the dispositive issue on appeal was whether “a life tenant ... is an ‘owner’ under Section 8-8 ... of the General Statutes.” The Appellate Court held that the plaintiff, as a life tenant, was entitled to appeal as an owner of land “which abuts or is within a radius of one hundred feet of any portion of the land involved in any decision of said [zoning] board . . . .” General Statutes § 8-8; Smith v. Planning & Zoning Board, supra, 555. The judgment of the trial court dismissing the plaintiffs appeal from the decision of the board was reversed and the case remanded for further proceedings consistent with the opinion. Smithy. Planning & Zoning Board, supra, 561. Permission to appeal by certification was granted by this court. The defendants appealed on a single record. We now consolidate the two appeals. Practice Book § 4004 (formerly § 3002).

The only issue which we need consider is whether the plaintiff as a life tenant has standing to appeal from the board’s decision as an owner of land under § 8-8. The plaintiff, who claimed to be aggrieved by the decision of the board to change the name of Caswell Street to Bic Drive, appealed to the Superior Court to reverse the decision. Section 8-8 allows aggrieved persons to appeal from decisions of zoning authorities to the Superior Court. The traditional requirements for an appeal have been frequently stated. The appeal will be dismissed unless the appellant alleges and proves aggrievement. To be an aggrieved person, one must be affected directly or in relation to a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest such as is the concern of all members of the community, and the appellant must be specially and injuriously affected as to property or other legal rights. I. R. Stich Associates, Inc. v. Town Council, 155 Conn. 1, 3, 229 A.2d 545 (1967). The situation is different with respect to any person owning land which abuts or is within a radius of one hundred feet of the land involved in any decision of a zoning board. Abutting landowners or landowners within a radius of one hundred feet of the land involved in any decision of the zoning board are considered automatically aggrieved and have standing to appeal a decision of a zoning board without having to prove aggrievement. See Point O’Woods Assn., Inc. v. Zoning Board of Appeals, 178 Conn. 364, 366, 423 A.2d 90 (1979).

The defendants contend that the Appellate Court erred in holding that the plaintiff has an interest in the land sufficient to entitle her to the benefit of the automatic appeal for landowners embodied in § 8-8. The defendants seem to rely principally upon Warner v. Leslie-Elliot Constructors, Inc., 194 Conn. 129, 137, 479 A.2d 231 (1984), where the term “landowner,” for reasons there stated, was narrowly construed to include only those who possess title to the land. That case, of course, dealt with a statute different from that now before us. See General Statutes § 52-557. Other cases, however, indicate that “[t]he word ‘owner’ has no fixed meaning but must be interpreted in its context and according to the circumstances in which it is used. . . . Courts have not agreed in the application of the meaning of the word, even when due allowance is made for the differing phraseology of the statutes involved and the circumstances under consideration.” Warren v. Borawski, 130 Conn. 676, 679-80, 37 A.2d 364 (1944).

We assume, although it is not entirely clear from the record, that the deed conveying the premises on Caswell Street to Bic and creating the plaintiff’s life estate was a duly recorded instrument. Upon the execution of the deed, the plaintiff was a tenant for life and a remainder in fee was vested in Bic. The plaintiff’s life interest, as shown in the deed, is a matter of record. Thus no question of whether she has record title is presented.

Section 8-8 purports to grant an automatic right of appeal to “any person owning land” who meets certain other qualifications. The question is whether the quoted language can be construed to include a life tenant. The plaintiff satisfies all requirements for an automatic right of appeal, if she may be regarded as a “person owning land.” The problem is apparently one of initial impression. For that reason we must interpret the statute in its context and according to the circumstances in which the term a “person owning land” is used.

The plaintiffs freehold estate is an estate for her own life. Her reserved life interest remains subject to her direction and control as long as she is alive. In every beneficial sense, she is the owner of the premises situated on Caswell Street. By the common law, a tenant for life, where he is under no restriction in the deed by which he holds, could use the land in the same manner as the holder in fee. Every life tenant had the right to the undisturbed possession of the land and to the income and profits derived from such land. C. Moynihan, Introduction to the Law of Real Property (1962 Ed.) c. 2, § 12. In addition, the alienable quality of a life estate allowed a life tenant to convey his whole estate to a third person. Id. A life tenant, as a holder of a freehold estate, was considered “seised” of the land. Id., c. 4, § 1. The concept of seisin has diminished somewhat in importance today. Under the common law, however, it was extremely significant. It connoted something beyond possession. It meant ownership “in so far as the common law admits of ownership”; and in many practical respects, the interest of the life tenant was treated as essentially equivalent to outright ownership. Id., c. 4, § 2.

We recognize that the plaintiff holds her property in a form which separates the right of possession of a life tenant from the rights of the remainderman in the fee. This, however, does not necessarily mean that a life tenant may not receive the benefits of § 8-8. The incidents of the plaintiffs ownership of the land as a tenant during her life lead us to conclude that she has a sufficient ownership of the locus to entitle her to recognition as a “person owning land” with the right to appeal under § 8-8.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       General Statutes § 8-8 provides in pertinent part: “(a) Any person or persons severally or jointly aggrieved by any decision of [a zoning board of appeals], or any person owning land which abuts or is within a radius of one hundred feet of any portion of the land involved in any decision of said board, or any officer, department, board or bureau of any municipality, charged with the enforcement of any order, requirement or decision of said board, may, within fifteen days from the date when notice of such decision was published in a newspaper pursuant to the provisions of section 8-3 or 8-7, as the case may be, take an appeal to the superior court for the judicial district in which such municipality is located, which appeal shall be made returnable to said court in the same manner as that prescribed for civil actions brought to said court.”

       It is of no significance that the plaintiff’s husband failed to participate in the appeal. No reason for his nonparticipation appears in the record. See Bush v. Bradley, 4 Day 298 (1810). We need not consider, either, the board’s claim that “as construed by the Appellate Court, General Statutes § 8-8, to the extent it purports to authorize an appeal to the Superior Court by an owner of land not aggrieved, constitutes an unconstitutional encroachment upon the judicial department.” This claim was never raised before and, therefore, never considered by the Appellate Court, whose actions we review. State v. Torrence, 196 Conn. 430, 433, 493 A.2d 865 (1985). The board similarly fails properly to present the constitutional question of whether, on its face, § 8-8 unconstitutionally permits an appeal by an abutting owner.
      We recently explained that as a well settled rule of constitutional adjudication, “a court will decide the constitutionality of a statute only as it applies to the particular facts at hand.” State v. Zach, 198 Conn. 168, 176, 502 A.2d 896 (1985). A party challenging the constitutional validity of a statute “must provide an adequate factual record in order to meet its burden of demonstrating the statute’s adverse impact on some protected interest of its own, in its own particular case, and not merely under some hypothetical set of facts as yet unproven.” Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O’Neill, 203 Conn. 63, 75, 523 A.2d 486 (1987). Prudential concerns counsel against adjudicating constitutional questions in a factual vacuum. See State v. Zach, supra, 176-78.
      In the present case, the plaintiffs appeal was dismissed on motion of the defendant Bic. The factual record of the case was therefore never fully developed and accordingly does not afford us a sufficient basis for resolving the constitutional issue presented. The constitutional validity of § 8-8 “could be passed upon to much better advantage if the cause was tried and the facts fully developed.” Barr v. First Taxing District, 147 Conn. 221, 225, 158 A.2d 740 (1960).

       In Milford the board sits as both a planning and zoning commission. Although the question was not raised, it should be made clear that the board here was acting as a zoning commission.


text:
    Anthony F. King v. Board of Education of the town of Watertown
    (12944)
    Peters, C. J., Healey, Shea, Dupont and McKeever, Js.
    Argued February 5
    decision released April 28, 1987

      Peter W. Benner, for the appellant (defendant).

      Donald J. Deneen, for the appellee (plaintiff).
   Arthur H. Healey, J.

On this appeal, the defendant, the board of education of the town of Watertown (board), maintains that the trial court erred in awarding attorney’s fees under General Statutes § 10-235 to the plaintiff, Anthony F. King, the former superintendent of schools for the town of Watertown. King incurred these fees in an action litigating the enforceability of a contract entered into on November 5,1980, between King and the board concerning King’s resignation as superintendent. We find no error.

The disposition of this appeal requires the exposition of circumstances that have their genesis in an earlier related appeal. King v. Board of Education, 195 Conn. 90, 486 A.2d 1111 (1985). That case arose as a result of a claim for indemnification, filed pursuant to General Statutes § 10-235 (a), for legal fees and costs incurred by King in a lawsuit brought by the town council of the town of Watertown against the board in which King was joined as a necessary party. Town Council v. Board of Education, Superior Court, judicial district of Waterbury, Docket No. 55550 (February 20, 1981) (town council action). There, the trial court concluded that King had not sufficiently alleged a claim under the indemnification statute and granted the motion to strike filed by the board. We found error. King v. Board of Education, supra. In reversing the trial court’s action in King, we said: “We conclude that the legislature intended to make indemnification available to a board of education employee for losses sustained from claims or suits for damages, injunctive relief or both, resulting from any act of the employee performed ‘in the discharge of his or her duties or within the scope of employment or under the direction of such board’ . ” Id., 97. We set aside the judgment and remanded with direction to deny the motion to strike and for further proceedings. Id., 98. On remand, the trial court rendered judgment in favor of King and awarded attorney’s fees in the amount of $4499.19 plus interest.

Because King is seeking indemnification for legal expenses arising out of a suit for injunctive relief which resulted from his signing the November 5,1980 agreement, the only portion of § 10-235 that requires construction on the present appeal is whether King’s legal fees were incurred while he “was acting . . . within the scope of employment or under the direction of the board of education.” See General Statutes § 10-235. The trial court concluded that he was so acting. We agree with the trial court.

Our conclusion that King was “acting . . . within the scope of [his] employment” within the reach of § 10-235, while easy to state, requires, in its application, that we examine the factual circumstances that led to the present appeal. While occasionally cases may arise under § 10-235 in which an employee is so clearly within or without the scope of his employment that the question is one of law, in the greater number of cases the decision is a question of fact for the trier.

The memorandum of decision of February 20,1981, of the trial court, Hull, J., in the town council action, of which the trial court, Gill, J., in the present case took judicial notice, must serve as the starting point for our discussion. That decision states, inter alia: “A basic social problem that rent the fabric of society in Watertown developed out of two actions of the Board beginning with the June, 1980 meeting and finalized at the next two monthly meetings.” First, five longtime teachers who were department heads were replaced because they had not complied with statutory certification requirements. Second, at 1:30 a.m. at the June meeting of the board, without that question being on the agenda, William P. Williams, the “popular principal” of the high school was transferred to a junior high school whose principal was in turn transferred to the high school. When these events took place, “all hell broke loose” and the “manner in which the department head matter and particularly the Williams exchange was handled showed insensitivity to citizen reaction and public relations which helped precipitate the present imbroglio.” King, who was a highly qualified educator and professional educational administrator, approved the removal of the “uncertified department heads” but recommended against the Williams transfer. King nevertheless became the “focal point of opposition to the Board’s actions.” “The degree of public anger and resentment against the Board and . . . King rose to an unprecedented high pitch and this continued to disrupt the entire educational process of the town of Watertown.”

A citizens’ group known as ARROW (Aroused Rabble Rousers of Oakville and Watertown) was the principal opponent of the board. From June, 1980, and thererafter, ARROW was “an extremely active and at times belligerent force in Watertown” and “[i]ts tactics at times seemed threatening to local officials. It had 200 regular members and could turn out 800 or 900 people at a town budget meeting. ARROW and its adherents were so fired up that they almost paralyzed the educational system in Watertown.” Board opponents picketed the homes of board members and painted green arrows pointed toward homes of board members. Although nothing illegal was done by members of ARROW, “a very high degree of personal, political and societal tension and animosity was ever present.” Because of their resentment against the board, and particularly against the five member group which controlled the board, ARROW and its supporters “effectively blocked” the adoption of the July 1,1980-June 30,1981 Watertown annual budget. On August 25, 1980, the town council adopted an interim budget for the first ninety days of the new fiscal year and on November 25,1980, adopted a further sixty day interim budget. Both interim appropriations contained “guidelines” promulgated by the town council because of the austerity imposed by the lack of a budget. These “guidelines” were properly made known to the board and were in effect on November 5, 1980.

In June, 1980, and thereafter, the board was “almost irreconcilably split 5-4” on the Williams and department heads matters. The controlling group of five “generally supported” King while “some members of the four man minority had reservations about him.” As a result of the “great public uproar,” two members of the four member minority of the board solicited the help of Mark Shedd, the then state commissioner of education. Thereafter, Shedd sent Peter Adomeit to Water-town to act as a mediator. Adomeit is an attorney who has mediated “dozens of tense situations through the years . . . .”

Adomeit found a “hopelessly split Board with . . . King a lightning rod for community hostility.” As the mediator, he felt that he had three objectives: “(a) to defuse the situation and remove the threat of violence; (b) to protect the interests of the Board; [and] (c) to protect the interests of . . . King’s professional advancement.” Adomeit determined that it was “imperative” that King resign. He noted that King would have difficulty in securing another position at that time as superintendents are usually hired one year in advance.

No claim was ever made that grounds existed to remove King for cause. The five member majority of the board was not willing to attempt to fire King or seek his resignation. It remained willing to give him a new contract until the agreement of November 5, 1980, was reached. The majority of the board felt that it was necessary to provide “a fair financial package” to King if he would resign because “he was largely not responsible for the turmoil and would be suddenly terminated with no immediate employment prospects.” The five member majority “was very much concerned about . . . King’s family and his financial security.” The four member minority agreed to the November 5, 1980 agreement because “it felt that . . . King must go” and it was concerned that if it did not agree with this agreement, “the majority would agree to give . . . King a longer contract than was achieved.”

At a special meeting on November 5,1980, the board unanimously approved an agreement worked out by Adomeit. That agreement included the renewal of King’s one year contract and the tender by King of his resignation and the board’s acceptance of the same. While the renewal of King’s contract and his prompt resignation were arranged so that it might be easier for him to gain other employment, this had “little substance and probably contributed to the public reaction which occurred.” The court found, however, that the board had acted in good faith in its approval of the agreement and “was acutely aware of and acted in direct response to the community response over the Board’s actions and the widespread community demand that . . . King be ousted.”

Although “[f]rom a purely financial viewpoint the agreement was an unusually generous one,” there was “much to be said on . . . King’s behalf.” King “was being forced out for reasons largely not of his doing.” A majority of the board “felt that he should be reappointed,” that his “reputation would be unfairly tarnished early in his career” and that King “could make a strong claim that he was a mere scapegoat, caught in the crossfire between competing interests.”

Thereafter, on December 8, 1980, the town council brought an action against the board to enjoin the implementation of the November 5, 1980 agreement. Town Council v. Board of Education, supra. The board then moved to dismiss and strike the complaint in that the town council had failed to join King as a party “necessary and indispensable to the granting of the relief requested. ...” The court then ordered King cited in as a party defendant. “Because he was cited in, [King] found it necessary to retain legal counsel to represent him . . . and, accordingly, incurred expenses for legal fees and other costs related to that action.” King v. Board of Education, supra, 94.

After the remand ordered in King, the trial court, Gill, J., conducted an evidentiary hearing at which King and the chairperson of the board on November 5,1980, testified. The parties agreed to the admission, as an exhibit, of Adomeit’s testimony in the town council action which describes in great detail not only the grave problems he found in “deeply divided” Watertown, but his evaluations, negotiations and recommendations leading to the November 5, 1980 agreement.

In this appeal, we must determine whether in the unusual circumstances of this case the interpretation to be given the “within the scope of employment” language, as used in § 10-235, legally justifies the trial court’s award of attorney’s fees.

“The fundamental objective of statutory construction is to ascertain and give effect to the apparent intent of the legislature.” State v. Kozlowski, 199 Conn. 667, 673, 509 A.2d 20 (1986); Hayes v. Smith, 194 Conn. 52, 57, 480 A.2d 425 (1984); see 2A J. Sutherland, Statutory Construction (4th Ed. Sands) § 58.06, p. 723. “As is true in every case involving the construction of a statute, our starting point must be the language employed by the legislature.” Verdon v. Transamerica Ins. Co., 187 Conn. 363, 366, 446 A.2d 3 (1982); see Lundy Electronics & Systems, Inc. v. Tax Commissioner, 189 Conn. 690, 695, 458 A.2d 387 (1983). We may also look to the legislative history and the circumstances surrounding the statutory enactment and to legislative practice and policy. State v. Kozlowski, supra, 673-74. It is of some significance that the legislature did not define the phrase in question. The legislature wisely recognized the difficulty of composing a formula which would clearly demarcate the line between what is and what is not “within the scope of employment” and left each case to its own particular circumstances. See, e.g., 99 C.J.S. 676, Workmen’s Compensation § 208. “In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result.” Stoni v. Wasicki, 179 Conn. 372, 376-77, 426 A.2d 774 (1979). Justice Cardozo once said: “Consequences cannot alter statutes, but may help to fix their meaning. Statutes must be construed, if possible, that absurdity and mischief may be avoided.” In re Rouss, 221 N.Y. 81, 91, 116 N.E. 782 (1917).

As we explicitly stated in King, since the first enactment in 1945 of the statute which has now become § 10-235 (a), “the protection afforded by the statute has been expanded frequently both with respect to the persons covered and the circumstances under which indemnification is available.” King v. Board of Education, supra, 95. In 1973, this statute already protected those covered “from financial loss or expense, including legal fees and costs, if any, arising out of any claim, demand, suit or judgment by reason of alleged negligence . . . or any other acts . . . provided such . . . employee, at the time of the acts . . . was acting in the discharge of his duties or . . . under the direction of such board of education . . . .” (Emphasis added.)

The encompassing “or any other acts” language was added expanding the protection and coverage of § 10-235 (a) in 1972. See Public Acts 1972, No. 201, § 1. The phrase “any other acts,” albeit in another context and not controlling, has been said to include any act that is “other,” which means “in addition to” or “distinct from” those acts already mentioned. See In re Estate of Freshour, 177 Kan. 492, 280 P.2d 642 (1955). The word “any” has a diversity of meanings and may be used to indicate “all” or “every” as well as “some” or “one” and its meaning in a given statute depends upon the context and subject matter of the statute. Donohue v. Zoning Board of Appeals, 155 Conn. 550, 556, 235 A.2d 643 (1967); New York, N.H. & H. R. Co. v. Stevens, 81 Conn. 16, 21, 69 A. 1052 (1908). If that test is applied, it is apparent here that “any” means “all” or “every.” Not only do these words of the 1972 enactment impose no limitation but a 1973 amendment further broadens the scope of the statute by adding the phrase “including but not limited to infringement of any person's civil rights.” See Public Acts 1973, No. 73-651, § 1. This amendment underscores the broad legislative sweep of the term “any other acts” as it is used in § 10-235.

Further support for our conclusion can be found in the fact that the 1972 amendment also inserted the word “or” after “duties” in that portion of the statute which prior to that time had stated: “provided such . . . employee . . . was acting in the discharge of his duties within the scope of his employment or under the direction of such board of education . . . .” The insertion of the additional disjunctive before “within the scope of his employment,” thereby placing that phrase between two disjunctives and separating it from the “acting in the discharge of his duties” phraseology served not only to create another alternative affording § 10-235 protection, but also arguably broadened the scope of employment ground because an employee no longer had to be “acting in the discharge of his duties” and “within the scope of his employment.” “When changes have been introduced by amendment it is not to be assumed that they are without design.” City of Stamford v. Town of Stamford, 107 Conn. 596, 606, 141 A. 891 (1928); Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 21 n.6, 434 A.2d 293 (1980); 1A J. Sutherland, supra, § 22.30, p. 265. Of course, the presumed change does not go any further than that which is expressly declared or necessarily implied. Robinson v. Unemployment Security Board of Review, supra; Doe v. Institute of Living, Inc., 175 Conn. 49, 63, 392 A.2d 491 (1978). In any event, the disjunctive “or” added in 1972 appears to have been intentionally used with its alternative significance and not, carelessly, as conjunctive. Harris v. Egan, 135 Conn. 102, 105, 60 A.2d 922 (1948). Its use indicates a clear legislative intent of separability. State v. Pascucci, 164 Conn. 69, 72, 316 A.2d 750 (1972).

Additional support for our conclusion can be found in the interpretation of the phrase “within the scope of employment” in the context of the workers’ compensation statute. Although the workers’ compensation cases are not controlling on the issue before us, they are, nevertheless, instructive for at least two reasons. First, in those cases, statutory coverage does not require that the compensable injury result when the employee is acting solely or only for the benefit of the employer. See, e.g., Dombach v. Olkon Corporation, 163 Conn. 216, 302 A.2d 270 (1972); Marks’ Dependents v. Grey, 251 N.Y. 90, 93-94, 167 N.E. 181 (1929) (Cardozo, J.). Second, unlike § 10-235, the workers’ compensation statute provides that a personal injury is compensable when it is one “arising out of and in the course of [the employee’s] employment . . . .” (Emphasis added.) General Statutes § 31-284 (a). The terms “arising out of” and “in the course of” set out a “two-part test” and each must be demonstrated by the claimant. McNamara v. Hamden, 176 Conn. 547, 550, 398 A.2d 1161 (1979); see Morin v. Lemieux, 179 Conn. 501, 427 A.2d 397 (1980). As we have noted, § 10-235 sets forth three disjunctive circumstances where attorney’s fees may be recoverable, i.e., “in the discharge of [the employee’s] duties or within the scope of employment or under the direction of [the] board of education . . . .’’(Emphasis added.) While we have no doubt that “within the scope of his employment” means that the legal injury must be incurred by an employee of a board of education and that the legal injury must be causally connected to that employment; see Phipps v. Niejadlik, 175 Conn. 424, 399 A.2d 1256 (1978); the three disjunctive bases set out in § 10-235, fairly read, indicate a standard not quite as strict as that for workers’ compensation under § 31-284 (a).

The board argues that the trial court erred in its “exclusive reliance on the ‘course of employment’ standard under the workers’ compensation statute” when it more appropriately should have considered “the purpose of § 10-235 to protect employees when acting in their employee capacities.” It also maintains that “[n]otwithstanding the fact that King was [s]uperintendent of [s]chools when he signed the severance agreement, he could not have been acting as [superintendent, but as an individual severing his employment relationship with [the board] on terms which were in the agreement only to satisfy [his] personal financial demands.” Without any such finding by the trial court and without any request for further articulation, the board asserts that it is admitted that no agreement would have been concluded in the absence of these financial terms. We note, to the contrary, that the testimony of King at the remand hearing would have supported a finding, if one had been made, that a satisfactory financial arrangement for him was not the sole reason for his signing the agreement.

The board’s argument that King was acting individually and not as superintendent when he signed the November 5,1980 agreement lacks merit. It is true that the word “superintendent” does not appear along with his signature on this agreement. But it is also true that that very agreement plainly sets out that the board had “voted to renew the contract of [King] as [superintendent of [s]chools in Watertown for the academic year 1981-1982 ...” and his signing that agreement recited the tender of “his resignation of [his] employment with the Board ...” and the board’s acceptance of that resignation. It is patently unrealistic to argue that the board was dealing with King as an individual when we consider the “tumultuous events facing the town” with the town “[facing] a true crisis of unprecedented proportions” that brought both the full board and King to enter the agreement of November 5,1980. When King signed the agreement, he had valuable contractual rights that he was not required to waive. These rights included the remainder of his term under his original contract, as well as a new one year term as superintendent for 1981-1982. Moreover, the execution of this agreement was not, as the board argues, on terms “which were in the agreement only to satisfy King’s personal financial demands.” What we have already set out and the agreement itself discloses is that the board, and indeed the town of Watertown, also benefited by the agreement.

The causal connection of the agreement to King’s status as an employee of the board is obvious. There is no finding that King’s motivations in signing the agreement with the board were solely personal; the executed agreement involved benefits to both the board and King and it also involved concessions by both parties. The best interests of the^educational system of the town of Watertown and of the town itself in successfully negotiating for the termination of the employer-employee relationship constituted strong links in forging the necessary causal connection in what both parties perceived as a mutual agreement terminating that relationship.

In the town council action, King was not an adversary of the board, but a codefendant and, significantly, not a nominal defendant. Under all the circumstances, the town council action has to be viewed as an attempt to enjoin the implementation of an agreement between the board and King entered into while King was employed by the board and which the parties, both represented by counsel, negotiated concerning one basic matter—the continuation of the employer-employee relationship. The town council did not prevail and there is no appeal pending in that case. Basically, concerned as the town council was with King’s continuing status as superintendent of schools, the November 5, 1980 agreement was effected when King was a board employee and was causally connected with his status as an employee. Because the agreement was significantly connected with his employment, the challenged activity was “within the scope of [King’s] employment” as required by § 10-235.

Our conclusion accords with the purpose of § 10-235. In 1972, the statute was amended to include the “or any other acts” language. In addressing this expansive language, proceedings on the Senate floor indicated that this amendment “would include acts which are not wanton, reckless or malicious and would cover more than just accident or negligence [sic] type of action brought against them.” 15 S. Proc., Pt. 5, 1972 Sess., p. 2280, remarks of Senator James J. Murphy, Jr. We therefore disagree with the board’s argument that King’s conduct, vis-a-vis his execution of the November 5,1980 agreement, was not within the scope of his employment and not an act that § 10-235 intended to encompass.

The board also claims that the trial court erroneously awarded King statutory interest under General Statutes § 37-3a. The allowance of interest as an element of damages is primarily an equitable determination within the discretion of the trial court. Bertozzi v. McCarthy, 164 Conn. 463, 467, 323 A.2d 553 (1973). On this record, we see no reasonable ground upon which to find an abuse of the trial court’s discretion.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 10-235 provides in relevant part: “(a) Each board of education shall protect and save harmless any member of such board or any teacher or other employee thereof or any member of its supervisory or administrative staff, and the state board of education, the board of governors of higher education, the board of trustees of each state institution and each state agency which employs any teacher, and the managing board of any public school, as defined in section 10-183b, shall protect and save harmless any member of such boards, or any teacher or other employee thereof or any member of its supervisory or administrative staff employed by it, from financial loss and expense, including legal fees and costs, if any, arising out of any claim, demand, suit or judgment by reason of alleged negligence or other act resulting in accidental bodily injury to or death of any person, or in accidental damage to or destruction of property, within or without the person, or in accidental damage to or destruction of property, within or without the school building, or any other acts, including but not limited to infringement of any person’s civil rights, resulting in any injury, which acts are not wanton, reckless or malicious, provided such teacher, member or employee, at the time of the acts resulting in such injury, damage or destruction, was acting in the discharge of his or her duties or within the scope of employment or under the direction of such board of education . . .

       The trial court in the present appeal, Gill, J., took judicial notice of this case. This court can and also has taken judicial notice of this case. See, e.g., State v. Davis, 192 Conn. 739, 744 n.2, 474 A.2d 776 (1984); Brockett v. Jensen, 154 Conn. 328, 336, 225 A.2d 190 (1966).
      The town council action was instituted against the Watertown board of education only.

       The board does not question that King, as superintendent of schools, qualified as an employee within the reach of General Statutes § 10-235. In
        King v. Board of Education, 195 Conn. 90, 97, 486 A.2d 1111 (1985), we determined that the legislature “intended to make indemnification available to a board of education employee for losses sustained from . . . suits for . . . injunctive relief . . . .”

       We disagree, for two reasons, with the board’s contention that the evidence of the factual circumstances prevailing in Watertown to which the trial court referred and upon which it relied is immaterial to the issue presented under General Statutes § 10-235. First, the determination as to what is within the scope of employment is initially a fact-bound determination. Second, we must take note of this evidence because the board charges that in deciding the issue the trial court below ignored certain evidence.

       Judge Hull found that two of these “guidelines” or “expenditure rules” were violated by one paragraph of the November 5, 1980 agreement between the board and King. He also found that there were “sufficient uncommitted funds within the Board’s interim budget ... to fund the agreement.”

       Peter Adomeit was one of five mediators used by Shedd on a contract basis. He presently teaches law at Western New England College School of Law and formerly taught at the University of Connecticut School of Law.

       The members of the board knew that under King’s contract, they could, on six months notice, that is, before December 31, 1980, discharge King with no payment.

       The board in its brief concerning the motivation and reasons for signing the November 5, 1980 agreement, argues that the trial court, Gill, J., ignored certain testimony of King. This argument is rejected for several reasons. First, the trial court’s memorandum of decision explicitly recognizes that the board was claiming that, in signing the November 5, 1980 agreement, King acted “solely in an individual capacity and for individual reasons and, therefore, falls outside the parameters of General Statutes Section 10-235.” Second, a fair reading of the transcript of King’s testimony discloses that the evidence on his motivations and reasons for signing the agreement required an evaluation by the trier of the extent to which his signing was based on personal interests and the best interests of the school system. Third, although the trial court’s memorandum indicates that it made very few findings of fact, the court file discloses that the board did not seek an articulation of that decision. Practice Book § 4051 (formerly § 3082). Fourth, given the presumption that judicial acts and duties have been duly and regularly performed, there is nothing before us to demonstrate that the trial court ignored the evidence involved. See Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 6, 513 A.2d 1218 (1986).

       The legislative history of General Statutes § 10-235 is reviewed in some detail in King v. Board of Education, 195 Conn. 90, 95-96, 486 A.2d 1111 (1985).

       Certainly it does not appear reasonable that the phrase “in the discharge of his duties” of General Statutes § 10-235 is applicable. There is no argument, under the circumstances of this case, that the plaintiff had a duty to resign as superintendent of schools.

       Public Acts 1972, No. 201, § 1, provides in relevant part: “Section 10-235 of the 1971 supplement to the general statutes is repealed and the following is substituted in lieu thereof: Each board of education shall protect and save harmless any member of such board or any teacher or other employee thereof or any member of its supervisory or administrative staff, and the state board of education, the commission for higher education, the board of trustees of each state institution and each state agency which employs any teacher, and the managing board of any public school, as defined in section 10-161, shall protect and save harmless any member of such board or commission, or any teacher or other employee thereof or any member of its supervisory or administrative staff employed by it, from financial loss and expense, including legal fees and costs, if any, arising out of any claim, demand, suit or judgment by reason of alleged negligence or other act resulting in accidental bodily injury to or death of any person, or in accidental damage to or destruction of property, within or without the school building, OR ANY OTHER ACTS RESULTING IN ANY INJURY, WHICH ACTS ARE NOT WANTON, RECKLESS OR MALICIOUS, provided such teacher, member or employee, at the time of the [accident] ACTS resulting in such injury, damage or destruction, was acting in the discharge of his duties OR within the scope of his employment or under the direction of such board of education, the commission for higher education, board of trustees, state agency, department or managing board.”

       Public Acts 1973, No. 73-651, § 1, provides in part: “(a) Each board of education shall protect and save harmless any member of such board or any teacher or other employee thereof or any member of its supervisory or administrative staff, and the state board of education, the commission for higher education, the board of trustees of each state institution and each state agency which employs any teacher, and the managing board of any public school, as defined in section 10-161, shall protect and save harmless any member of such board or commission, or any teacher or other employee thereof or any member of its supervisory or administrative staff employed by it, from financial loss and expense, including legal fees and costs, if any, arising out of any claim, demand, suit or judgment by reason of alleged negligence or other act resulting in accidental bodily injury to or death of any person, or in accidental damage to or destruction of property, within or without the school building, or any other acts, INCLUDING BUT NOT LIMITED TO INFRINGEMENT OF ANY PERSON’S CIVIL RIGHTS, resulting in any injury, which acts are not wanton, reckless or malicious, provided such teacher, member or employee, at the time of the acts resulting in such injury, damage or destruction, was acting in the discharge of his duties or within the scope of his employment or under the direction of such board of education, the commission for higher education, board of trustees, state agency, department or managing board.”

       General Statutes § 31-284 (a) provides: “An employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as follows, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication. All rights and claims between employer and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment as aforesaid are abolished other than rights and claims given by this chapter, provided nothing herein shall prohibit any employee from securing, by agreement with his employer, additional benefits from his employer for such injury or from enforcing such agreement for additional benefits.”

       During the cross-examination of King at the remand hearing, the following took place:
      “Q. Now, you testified in your direct that at sometime, I believe, during October of 1980 you reached a determination that the recommendation of Mr. Adomeit that you resign as superintendent was not something that you were willing to consider, is that—was something that you were willing to consider, is that correct?
      “A. I was willing to consider it on the basis that I felt that it would be in the best interest of the school system and my family, yes.
      “Q. Is it fair to say, Mr. King, that you were willing to accept the idea of resignation only if the terms were right from a financial standpoint, is that correct?
      “A. No, that is not correct. That was not the only [criteria] for my considering submitting the resignation.
      “Q. That wasn’t my question. My question is, would you have resigned if the financial terms of the agreement did not satisfy the criteria that you just referred to?
      “A. I would have to say the answer to that is no.
      “Q. Would not have resigned?
      “A. Would not have resigned.”

       Although the trial court in the prior action ultimately concluded that the agreement had been legally entered into, the memorandum of decision in that action discloses the following: ‘The court concludes that the expenditure rules adopted by the Council are beyond its authority and illegal insofar as they apply to the educational budget. . . . The November 5th agreement was legal and not legally in violation of the Town Council’s interim budget rules since those rules were illegal and beyond the Council’s authority. ...”

       The board’s reliance on Kearney v. Board of Education, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 224794 (December 19, 1979), is misplaced. Initially, Kearney and the case before us are completely different factually. In Kearney, the plaintiff sought indemnification for his legal expenses under General Statutes § 10-235 after he had successfully defended an action brought against him by the board of education seeking his termination for his disciplining of a student. In the present appeal, the board and King were codefendants and not adversaries, as in Kearney. In addition, the Kearney court states that the “question posed by the facts of this case is whether the paying of expenses or loss is intended by the statute to cover those paid by the teacher [Kearney] to defend himself against the Board’s charges (whether he or it initiates the process) as opposed to a third person’s charges.” It is thus apparent that Kearney, fairly read, at least seems to recognize that § 10-235 can apply when a covered employee incurs such expenses in defending against an action instituted by a third party, which is the posture of the case before us. Its persuasiveness on the issue on the present appeal is, therefore, attenuated by its dissimilarities to the present matter.

       General Statutes § 37-3a provides: “rate recoverable AS DAMAGES. Except as provided in sections 37-3b and 52-192a, interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions or arbitration proceedings under chapter 909, including actions to recover money loaned at a greater rate, as damages for the detention of money after it becomes payable except as otherwise provided with respect to demand obligations in section 42a-3-122 (4) (a). Judgment may be given for the recovery of taxes assessed and paid upon the loan, and the insurance upon the estate mortgaged to secure the loan, whenever the borrower has agreed in writing to pay such taxes or insurance or both. Whenever the maker of any contract is a resident of another state or the mortgage security is located in another state, any obligee or holder of such contract, residing in this state, may lawfully recover any agreed rate of interest or damages on such contract until it is fully performed, not exceeding the legal rate of interest in the state where such contract purports to have been made or such mortgage security is located.”

       The trial court, Gill, J., refused to award King punitive damages. In its brief, the board argues that the trial court did not explain the “basis” on which it entered its award of interest. Here again, we note that no articulation was sought by the board. See Practice Book § 4051 (formerly § 3082).