author: Peters, C. J.

text:
    Doris B. Garrity v. Douglas G. McCaskey
    (14493)
    Peters, C. J., Callahan, Covello, Borden and Berdon, Js.
    Argued June 9
    decision released July 21, 1992

      Alexander J. Trembicki, for the appellant (defendant).

      A. Reynolds Gordon, for the appellee (plaintiff).
   Peters, C. J.

The principal issue in this appeal is whether a court should vacate an award resulting from consensual arbitration because of the arbitrators’ alleged manifest disregard of the applicable law. The arbitration arose out of a written agreement of the parties subsequent to an action commenced by the plaintiff, Doris B. Garrity, in which she claimed that the defendant, Douglas G. McCaskey, had violated state and federal securities laws in his management of her stock portfolio. Following the arbitrators’ decision and award of damages in favor of the plaintiff, the plaintiff filed an application with the Superior Court pursuant to General Statutes § 52-417 to confirm the award and the defendant filed a separate application pursuant to General Statutes § 52-418 to vacate the award. The trial court granted the plaintiff’s application for confirmation. Thereafter, the defendant appealed to the Appellate Court from the judgment confirming the award. We transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c), and now affirm.

The arbitrators found the following facts. In 1984, the plaintiff commenced a business relationship with the defendant, in which the defendant undertook to manage the plaintiffs stock portfolio. From the outset, the defendant ignored the plaintiffs instructions that prohibited particular transactions, and engaged in margin, option, and other highly speculative trading. Due to continued losses in these unauthorized trades, the defendant also sold portions of the plaintiffs original portfolio to cover the account debt. These transactions significantly decreased the size and value of the total portfolio. Although the defendant claimed that the applicable statutes of limitations had expired since the beginning of his alleged misconduct, the arbitrators found that “the existence of [a] fiduciary relationship [between the plaintiff and the defendant] tolled the Statute of Limitations so that [the plaintiffs] claim is timely.” The arbitrators rendered their decision in favor of the plaintiff and awarded damages in the amount of $330,306, which included restoration of the original portfolio’s value as of March 7, 1991, the date of the hearing.

The defendant makes two principal claims in support of his contention that the trial court should have vacated the arbitration award. He maintains that the arbitration award was in manifest disregard of the law because it failed to recognize that applicable state and federal statutes of limitations on their face barred the plaintiff’s claim and that these statutes had not been tolled. He maintains, further, that the arbitration award exceeded the scope of the arbitration submission, and was in manifest disregard of the law, when the panel awarded damages to the plaintiff that restored the value of her portfolio as of 1991, the time of the hearing. We are unpersuaded.

I

We address first the defendant’s claim that the arbitrators should have barred the plaintiff’s securities claims because of applicable state and federal statutes of limitations that were not tolled in the circumstances of this case. This claim raises two subissues: (1) as a general proposition, does a “manifest disregard of the law” require a trial court to vacate an arbitration award; and (2) if so, should the arbitration award in the present case be vacated on this ground?

A

Our inquiry into “manifest disregard of the law” as a ground for vacating an arbitration award is guided by well established principles of the law of consensual arbitration. When the parties agree to arbitration and establish the authority of the arbitrator through the terms of their submission, the extent of our judicial review of the award is delineated by the scope of the parties’ agreement. American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 185, 530 A.2d 171 (1987). When the scope of the submission is unrestricted, the resulting award is not subject to de novo review even for errors of law so long as the award conforms to the submission. Hartford v. Board of Mediation & Arbitration, 211 Conn. 7, 14, 557 A.2d 1236 (1989); New Haven v. AFSCME, Council 15, Local 530, 208 Conn. 411, 415-16, 544 A.2d 186 (1988). Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution. Middletown v. Police Local, No. 1361, 187 Conn. 228, 230, 445 A.2d 322 (1982); State v. Connecticut Employees Union Independent, 184 Conn. 578, 579, 440 A.2d 229 (1981).

We conclude, as did the trial court, that the award in this case arose out of an unrestricted submission. The authority of an arbitrator to adjudicate the controversy is limited only if the agreement contains express language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review. In the absence of any such qualifications, an agreement is unrestricted. Carroll v. Aetna Casualty & Surety Co., 189 Conn. 16, 20, 453 A.2d 1158 (1983); Bic Pen Corporation v. Local No. 134, 183 Conn. 579, 584-85, 440 A.2d 774 (1981); Bridgeport v. Bridgeport Police Local 1159, 183 Conn. 102, 106-107, 438 A.2d 1171 (1981). In the present case, the agreement provided that the “[arbitration shall consider and determine any and all of [the plaintiffs] claims against [the defendant],” and that “[the defendant] reserves all rights and defenses.” At oral argument in this court, the parties acknowledged that this agreement was intended to authorize the arbitrators to determine fully both the plaintiff’s claims and the defendant’s rights and defenses. In light of the acknowledgment that the arbitrators had unqualified authority to resolve their dispute, we conclude that their submission was unrestricted.

Even in the case of an unrestricted submission, we have, however, recognized three grounds for vacating an award: (1) the award rules on the constitutionality of a statute; Caldor, Inc. v. Thornton, 191 Conn. 336, 344, 464 A.2d 785 (1983), aff’d, 472 U.S. 703, 105 S. Ct. 2914, 86 L. Ed. 2d 557 (1985); (2) the award violates clear public policy; Watertown Police Union Local 541 v. Watertown, 210 Conn. 333, 339, 555 A.2d 406 (1989); or (3) the award contravenes one or more of the statutory proscriptions of § 52-418. Carroll v. Aetna Casualty & Surety Co., supra, 22-23. The defendant impliedly urges us to consider as a separate fourth ground for judicial intervention an alleged manifest disregard of the law. We decline to do so.

We have historically construed narrowly the two common law grounds for vacating an arbitration award. We denominate the constitutionality and public policy exceptions as common law grounds although we have, on occasion, implied that the basis for these grounds is to be found within the statutory scheme of § 52-418 (a) (4). See, e.g., Hartford v. Board of Mediation & Arbitration, supra, 14; Watertown Police Union Local 541 v. Watertown, supra, 339. It is more appropriate to recognize that the power to determine the constitutionality of a statute and the power to strike an arbitration ruling as violative of public policy exist apart from any particular grant of authority from the legislative branch. Because of the multiple sources authorizing judicial review of arbitration awards, we therefore deem inaccurate the implication in these earlier cases that § 52-418 (a) (4) is the sole source of the court’s power of review.

Our consideration of the applicability of the common law exceptions in the present circumstances persuades us that they are not applicable in this case, either directly or by way of analogy. The exception for issues of constitutionality is limited to setting aside an arbitrator’s award that explicitly rules on the constitutionality of a statute. Caldor, Inc. v. Thornton, supra, 344. The public policy exception applies only when the award is clearly illegal or clearly violative of a strong public policy. Watertown Police Union Local 541 v. Watertown, supra, 339. These narrow exceptions to the general discretion of the arbitrator to decide all questions of fact and law within the scope of the submission do not encompass an alleged manifest disregard of the law. In light of the strong public policy that favors arbitration and in deference to the existing statutory scheme through which the legislature has chosen to define this field, we decline the defendant’s invitation to create a new exception independent of § 52-418.

The defendant’s invocation of a doctrine of manifest disregard of the law may, however, be encompassed by the existing statutory scheme for judicial review of arbitration in § 52-418. Section 52-418 (a) (4) provides that an award shall be vacated if “the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.” In our construction of § 52-418 (a) (4), we have, as a general matter, looked to a comparison of the award with the submission to determine whether the arbitrators have exceeded their powers. New Haven v. AFSCME, Council 15, Local 530, supra, 415; O & G/O’Connell Joint Venture v. Chase Family Limited Partnership No. 3, 203 Conn. 133, 153, 523 A.2d 1271 (1987); Bic Pen Corporation v. Local No. 134, supra, 584. We have also recognized, however, that an arbitrator’s egregious misperformance of duty may warrant rejection of the resulting award. In Darien Education Assn. v. Board of Education, 172 Conn. 434, 437-38, 374 A.2d 1081 (1977), we noted that “[i]f the memorandum of an arbitrator revealed that he had reached his decision by consulting a ouija board, surely it should not suffice that the award conformed to the submission.” We have also acknowledged that a court should vacate an award if “the memorandum patently discloses an infidelity to the obligation imposed upon the arbitrators.” New Britain v. State Board of Mediation & Arbitration, 178 Conn. 557, 562, 424 A.2d 263 (1979).

Our recognition that there may be occasion to vacate an award because of egregious misbehavior is consistent with the developing jurisprudence in other jurisdictions. The principle that an award may be vacated because of a “manifest disregard of the law” was first articulated by the United States Supreme Court, in dictum, in Wilko v. Swan, 346 U.S. 427, 436-37, 74 S. Ct. 182, 98 L. Ed. 168 (1953): “In unrestricted submissions . . . the interpretations of the law by the arbitrators in contrast to manifest disregard are not subject, in the federal courts, to judicial review for error in interpretation.” (Emphasis added.) Although the federal courts have interpreted their arbitration statute to permit this judicially created ground for vacating the award, they have carefully delineated the extraordinarily narrow scope of such a review. The test was applied to reject an aggrieved party’s invitation to review and vacate an arbitration award in Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bobker, 808 F.2d 930 (2d Cir. 1986), where the court held that “manifest disregard of the law” “clearly means more than error or misunderstanding with respect to the law. . . . The error must have been obvious and capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator. Moreover, the term ‘disregard’ implies that the arbitrator appreciates the existence of a clearly governing legal principle but decides to ignore or pay no attention to it. . . . Judicial inquiry under the ‘manifest disregard’ standard is therefore extremely limited. The governing law alleged to have been ignored by the arbitrators must be well defined, explicit, and clearly applicable. We are not at liberty to set aside an arbitration panel’s award because of an arguable difference regarding the meaning or applicability of laws urged upon it.” Id., 933-34.

Other states have also recognized that an arbitrator’s egregious misperformance of duty or patently irrational application of legal principles warrants review and rejection of the resulting award. The New York Court of Appeals has held that “[t]he arbitrator’s determination may even entail a misapplication of substantive rules of law and still be not subject to being vacated unless the court concludes that it is totally irrational . . ." Maross Construction, Inc. v. Central New York Regional Transportation Authority, 66 N.Y.2d 341, 346, 488 N.E.2d 67, 497 N.Y.S.2d 321 (1985). The Supreme Judicial Court of Massachusetts similarly has concluded that, “even if [the arbitrator] may have been in error in [its] interpretation of [the contract] . . . we do not see the arbitrator’s action as so irrational as to permit our intervention to vacate the award.” Concerned Minority Educators of Worcester v. School Committee of Worcester, 392 Mass. 184, 188, 466 N.E.2d 114 (1984); see also, e.g., Muzzy v. Chevrolet Division, General Motors Corporation, 153 Vt. 179, 185, 571 A.2d 609 (1989) (referring to “manifest disregard of the law” and holding that “[o]nly under extreme circumstances can we intervene to correct an error of law”); Mayor and City Council of Baltimore v. Allied Contractors, Inc., 236 Md. 534, 546, 204 A.2d 546 (1964) (“[a] mistake which will vitiate or invalidate an award must be gross and manifest to the point of showing bad faith or failure to exercise honest judgment”); 16 S. Williston, Contracts (3d Ed. Jaeger 1976) § 1923B, p. 694 n.13 (citing the “manifest disregard of the law” standard of review for vacating an arbitration award).

We conclude, therefore, that an award that manifests an egregious or patently irrational application of the law is an award that should be set aside pursuant to § 52-418 (a) (4) because the arbitrator has “exceeded [his] powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.” We emphasize, however, that the “manifest disregard of the law” ground for vacating an arbitration award is narrow and should be reserved for circumstances of an arbitrator’s extraordinary lack of fidelity to established legal principles.

So delimited, the principle of vacating an award because of a manifest disregard of the law is an important safeguard of the integrity of alternate dispute resolution mechanisms. Judicial approval of arbitration decisions that so egregiously depart from established law that they border on the irrational would undermine society’s confidence in the legitimacy of the arbitration process. See 16 S. Williston, supra, § 1923C, pp. 743, 745 (noting that “[a]mong the disadvantages or drawbacks which are generally recognized” in arbitration is the “[possibility of an arbitrary, irresponsible or capricious award”); see also comment, “Arbitration in Connecticut: Issues in Judicial Intervention Under the Connecticut Arbitration Statutes,” 17 Conn. L. Rev. 387, 412 (1985). Furthermore, although the discretion conferred on the arbitrator by the contracting parties is exceedingly broad, modern contract principles of good faith and fair dealing recognize that even contractual discretion must be exercised for purposes reasonably within the contemplation of the contracting parties. See Warner v. Konover, 210 Conn. 150, 154-55, 553 A.2d 1138 (1989); 2 Restatement (Second), Contracts (1981) § 205.

B

The defendant contends that the arbitrators’ allegedly erroneous consideration of relevant statutes of limitations so manifestly disregarded the law as to warrant vacating the award. In order to prevail, the defendant must demonstrate that the award reflects an egregious or patently irrational rejection of clearly controlling legal principles. He has failed to do so.

According to the defendant, the arbitrators ignored or at least misapplied federal or state statutes of limitations that should have barred the plaintiff’s securities claims. The arbitrators’ decision, however, clearly indicates that they considered the statutes of limitations issue. The memorandum of decision explicitly concluded that the plaintiff’s claim was timely because any statutes of limitations had been tolled. Nonetheless, the defendant asserts that, even if the arbitrators considered the limitations periods, they misapplied equitable tolling doctrines.

Because we do not review an arbitrator’s decision merely for errors of law, in the present case we do not decide the merits of the defendant’s argument regarding the proper application of the statutes of limitations to the plaintiff’s securities claims. Even if the arbitrators were to have misapplied the law governing statutes of limitations, such a misconstruction of the law would not demonstrate the arbitrators’ egregious or patently irrational rejection of clearly controlling legal principles. The defendant’s claim in this case falls far short of an appropriate invocation of § 52-418 (a) (4) for a manifest disregard of the law.

II

The defendant also maintains that the trial court should have vacated the award because of an alleged misapplication of the law of remedies. The defendant claims that the arbitrators, in awarding the plaintiff damages through 1991, when the arbitration hearing was held, instead of terminating her damages as of 1988, when the client-broker relationship ended: first, exceeded the scope of its authority; and, second, manifestly disregarded the law. In light of the earlier discussion in this opinion, the defendant’s claim is unpersuasive.

We have already noted that the arbitration submission in this case was an unrestricted submission. An award conforming to an unrestricted submission should generally be confirmed by the court. New Haven v. AFSCME, Council 15, Local 530, supra, 415-16; O & G/O’Connell Joint Venture v. Chase Family Limited Partnership No. 3, supra, 153-54; Bic Pen Corporation v. Local No. 134, supra, 584-85.

The defendant urges us nonetheless to consider his contention that the submission was limited to the pleadings in the lawsuit antecedent to the arbitration, and that, therefore, the damage award should have been limited to the period ending November, 1988. This contention is refuted by the terms of the submission, which state explicitly that the “[arbitration shall consider and determine any and all of [the plaintiff’s] claims against [the defendant] including . . . all Connecticut and federal claims, and any and all claims existing in the present pending lawsuit . . . .” (Emphasis added.) This language is broad enough to support the arbitrators’ determination that the claims included damages through the period ending March, 1991. Even if the submission were read to limit the plaintiff’s claims to those listed in the complaint, the amended complaint claimed for relief “money damages measured in such a way as to restore the plaintiff’s portfolio to her, with appropriate adjustments.” The award restoring the value of the plaintiff’s original portfolio through March, 1991, was within the scope of the submission.

The defendant alternatively asserts that the award was the product of a manifest disregard of the law because the arbitrators misapplied the law of damages. In particular, he asserts that damages awarded on a theory of rescission, properly applied, would not have permitted an award extending past November, 1988. As with his claim of manifest disregard of the law of statutes of limitations, we will not decide the merits of this claim because the defendant has not demonstrated anything more than his disagreement with the arbitrators’ interpretation and application of established legal principles. Such a contention is a far cry from the egregious or patently irrational misperformance of duty that must be shown in order to prove a manifest disregard of the law under § 52-418 (a) (4). Acceptance of his argument would turn every disagreement with arbitrators’ rulings of law into an allegation of manifest disregard of the law. We have never construed § 52-418 (a) (4) so broadly and we decline to do so today.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 52-417 provides in relevant part: “application for order confirming award. At any time within one year after an award has been rendered and the parties to the arbitration notified thereof, any party to the arbitration may make application to the superior court . . . for an order confirming the award. The court or judge shall grant such an order confirming the award unless the award is vacated, modified or corrected as prescribed in sections 52-418 and 52-419.”

       General Statutes § 52-418 provides in relevant part: “vacating award. (a) Upon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       The defendant claims in his statement of the issues on appeal that the award should be vacated pursuant to General Statutes § 52-418 (a) (3) and (4). He has provided, however, neither argument nor facts to support a § 52-418 (a) (3) claim that the arbitrators refused to postpone the hearing or refused to hear evidence. We therefore consider this claim abandoned and consider only his claim related to § 52-418 (a) (4).

       The plaintiff ended her client-broker relationship with the defendant, and subsequently filed her complaint in the Superior Court, in 1988.

       The arbitration agreement provided in relevant part: “Scope of Arbitration: Arbitration shall consider and determine any and all of [the plaintiffs] claims against [the defendant] including claims for punitive damages, attorney’s fees, all Connecticut and federal claims, and any and all claims existing in the present pending lawsuit including any and all claims against [the defendant] concerning activities during the Drexel period. Claims during the Drexel period are not limited to the Court pleadings.
      “In signing this agreement, [the defendant] reserves all rights and defenses, including a defense of lack of authority or jurisdiction of the arbitrators to award punitive damages, statute of limitations and all other defenses.
      “Simultaneously with this agreement, the parties shall execute a demand for arbitration and the same shall be forwarded to the Connecticut AAA [American Arbitration Association] office.”

       We emphasize that we do not hold that this review centers on an arbitrator’s memorandum of decision, or that all arbitration decisions require such a memorandum. We do note that, if the clarity of the error is so apparent as to show, for instance, on the face of the award or in the arbitrator’s memorandum of decision, our courts may review this evidence to determine whether to vacate the award pursuant to General Statutes § 52-418 (a) (4).

       The federal statute that provides for vacating an arbitration award, 9 U.S.C. § 10 (d), is virtually identical to General Statutes § 52-418 (a) (4).


source: Caselaw Access Project

author: Covello, J.

license: Public Domain

text:
    Jeanne L. Warkentin, Administratrix (Estate of Stephen R. Haddad) v. J. William Burns, Commissioner of Transportation, et al.
    (14247)
    Peters, C. J., Callahan, Glass, Covello and Borden, Js.
    Argued April 1
    decision released July 21, 1992

      David S. Golub, with whom were Tanina Rostain and Jonathan M. Levine, for the appellant (plaintiff).

      Paul E. Pollock, for the appellee (named defendant).
   Covello, J.

This is a negligence action seeking damages for injuries and death sustained as the result of an automobile accident allegedly caused by a defective, i.e., icy, highway. The dispositive issue is whether the plaintiff complied with the notice provisions of General Statutes § 13a-144. We conclude that the plaintiff failed to provide timely and sufficient notice to the commissioner of transportation of her claim and thus was barred from bringing this action. We therefore affirm the trial court’s judgment for the named defendant that was rendered on different grounds.

The relevant facts are not disputed. On February 4, 1984, the plaintiff’s decedent, Stephen Haddad, sustained injuries as a result of a one car accident on Route 33 in Wilton. Haddad subsequently died following medical treatment at the Norwalk Hospital.

On August 25, 1984, 203 days after the date of the accident, the plaintiff’s attorney furnished the defendant commissioner of transportation, J. William Burns (commissioner), with notice that the plaintiff intended to commence the present action pursuant to § 13a-144. In April, 1985, the plaintiff, Jeanne L. Warkentin, as administratrix of the estate of Stephen Haddad, commenced the present action under the defective highway statute alleging the commissioner’s negligence in the maintenance of the roadway. The commissioner moved to strike the plaintiff’s complaint on the ground that notice had not been provided to him within ninety days of the accident as required by § 13a-144. The trial court denied the motion concluding that the plaintiff had furnished proper notice because the ninety day period began on August 17, 1984, the date the Probate Court appointed a representative of the decedent’s estate, rather than on February 4, 1984, the date of the accident.

In due course, the matter was tried to a jury. Prior to the matter’s submission to the jury, the commissioner moved for a directed verdict, again placing in issue the timeliness of the plaintiff’s notice. The trial court denied the motion. Thereafter, the jury returned a verdict in favor of the commissioner. The trial court subsequently denied the plaintiff’s motion to set aside the verdict and rendered judgment for the commissioner. The plaintiff then appealed to the Appellate Court, and we thereafter transferred the matter to ourselves pursuant to Practice Book § 4023.

As a threshold matter, the commissioner asks us to consider whether the trial court should have concluded that the plaintiff’s action was barred as a matter of law because the plaintiff had failed to give the required statutory notice. The plaintiff contends that she complied with the notice requirements for three reasons: (1) the commissioner received sufficient notice from third party sources within the ninety day period; (2) the notice requirements of § 13a-144 do not apply to wrongful death actions; and (3) the provisions of statutes dealing with the survival of actions, i.e., General Statutes §§ 52-599 and 52-594, extend the notice requirement of § 13a-144 to one year plus ninety days in cases involving death. We agree with the defendant.

I

The plaintiff first claims that written communications concerning the defective condition sent to the commissioner by a number of third party sources within ninety days of the accident provided all the information required by the statute. The plaintiff further argues that the police report sent by the Wilton police department to the commissioner within the ninety day period also served to comply with the notice requirement. We disagree.

Section 13a-144 provides in relevant part that “[n]o such action shall be brought except within two years from the date of such injury, nor unless notice of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner.” The statute created a cause of action “wholly unauthorized by the common law.” Wethersfield v. National Fire Ins. Co., 145 Conn. 368, 371, 143 A.2d 454 (1958). Thus, the statutorily required notice is a “condition precedent to the cause of action.” Id. If this requirement is not met, no cause of action exists. Rapid Motor Lines, Inc. v. Cox, 134 Conn. 235, 237, 56 A.2d 519 (1947). Moreover, “ ‘ “[statutes in derogation of sovereignty should be strictly construed in favor of the state, so that its sovereignty may be upheld and not narrowed or destroyed . . . .” ’ ” Berger, Lehman Associates, Inc. v. State, 178 Conn. 352, 356, 422 A.2d 268 (1979), quoting Spring v. Constantino, 168 Conn. 563, 570-71, 362 A.2d 871 (1975).

The “requirement as to notice was not devised as a means of placing difficulties in the path of an injured person. The purpose [of notice is] . . . to furnish the commissioner with such information as [will] enable him to make a timely investigation of the facts upon which a claim for damages [is] being made.” (Emphasis added.) LoRusso v. Hill, 139 Conn. 554, 557, 95 A.2d 698 (1953); Schaap v. Meriden, 139 Conn. 254, 256, 93 A.2d 152 (1952); see Murray v. Milford, 380 F.2d 468, 473 (2d Cir. 1967). The notice requirement is not intended merely to alert the commissioner to the occurrence of an accident and resulting injury, but rather to permit the commissioner to gather information to protect himself in the event of a lawsuit. Morico v. Cox, 134 Conn. 218, 223, 56 A.2d 522 (1947). Sufficiency of the notice is to be tested with reference to the purpose of the notice, i.e., that a claim is being made. Delaney v. Waterbury & Milldale Tramway Co., 91 Conn. 177, 181, 99 A. 503 (1916).

We conclude that injured parties, to meet the requirements of the statute, must either individually or through a representative, notify the commissioner that they have filed or intend to file a claim against the state for damages caused by a defective condition. LoRusso v. Hill, supra; Schaap v. Meriden, supra; Morico v. Cox, supra. In this case, although the communications provided details about the accident, the injured party failed to notify the commissioner that a claim would be made.

II

The plaintiff next argues that although § 13a-144 creates causes of action against the commissioner for personal injuries, property damage, or death as a result of a defective highway condition, the notice requirement only applies to the causes of action for personal injuries or property damage, but not to the causes of action for death. The plaintiff argues that because the language of the notice provision uses the term “injury,” but not “death,” this demonstrates a legislative intent that there be no notice requirement for causes of action for death under the statute. We conclude that the plain language of the statute dictates otherwise.

The language of the statute compels the conclusion that § 13a-144 requires notice in cases of both injury and death. The first sentence of the statute creates causes of action for both injuries to persons or property and death. The second sentence requires that “[n]o such action” shall be brought unless notice is given to the commissioner within ninety days of “injury.” The use of the word “such” to modify “action” refers to the language in the preceding sentence, which creates causes of action for both injury and death. Contrary to the plaintiffs argument, the phrase “[n]o such action” refers to instances of both injury and death.

Further, “[t]he fundamental objective of statutory construction is to ascertain and give effect to the apparent intent of the legislature.” (Internal quotation marks omitted.) King v. Board of Education, 203 Conn. 324, 332, 524 A.2d 1131 (1987), quoting State v. Kozlowski, 199 Conn. 667, 673, 509 A.2d 20 (1986). “Legislative intent is not to be found in an isolated sentence; the whole statute must be considered.” Gentry v. Norwalk, 196 Conn. 596, 606, 494 A.2d 1206 (1985). “We can best reach the meaning here, as always, by recourse to the underlying purpose” of the statutory provision. Id., 606-607, quoting Borella v. Borden Co., 145 F.2d 63, 64 (2d Cir. 1944), aff'd, 325 U.S. 679, 65 S. Ct. 1223, 89 L. Ed. 1865 (1945). “ Tn construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result.’ ” King v. Board of Education, supra, 332-33.

As discussed earlier, the purpose of the notice requirement is to notify the commissioner that a claim will be made against him so that the commissioner can make a timely investigation of the facts and circumstances of the accident in order to protect the state’s interests. To read the statute the way the plaintiff proposes would distort the underlying purpose of the notice provision by requiring notice in cases involving damages to persons or property, but no notice in cases for damages on account of death. “A statute is not to be interpreted to thwart its purpose.” Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 489, 400 A.2d 726 (1978). Since the purpose of the statute is to allow the commissioner to protect himself against claims, that protection should apply equally to claims for injury to persons or property and claims for death.

III

The plaintiff next claims that although she brought an action pursuant to § 13a-144, provisions of the state survival statutes extend the ninety day notice limitation of § 13a-144 to one year plus ninety days in cases involving death. The plaintiff argues that since the decedent had a cause of action for injuries before his death, that cause of action survived his death and could be pursued by the administratrix of his estate under General Statutes § 52-599. See footnote 3, supra. Further, the plaintiff argues that under General Statutes § 52-594; see footnote 4, supra; the ninety day time limitation for commencement of a personal action under § 13a-144 is extended by one year. The plaintiff contends that since her attorney provided satisfactory notice six months after the accident, notice was timely because it fell within the one year extension period. We disagree.

The ninety day notice provision in § 13a-144 is clear and unambiguous. The plaintiff must give the commissioner notice within ninety days of the date of injury in order to maintain an action under the statute. The statute makes no reference to any other statute or time limitation. Further, the plaintiff fails to cite any authority for the proposition that the survival statutes should be read into § 13a-144. On the contrary, prior cases have uniformly held that in actions pursuant to § 13a-144, notice must be given to the commissioner within ninety days of the injury. See, e.g., Kuchinski v. Burns, 23 Conn. App. 198, 579 A.2d 585, cert. denied, 216 Conn. 826, 582 A.2d 204 (1990) (rejecting the plaintiffs argument that the ninety day period should run from the date of the appointment of the fiduciary).

“The primary rule of statutory construction is that [i]f the language of the statute is clear, it is assumed that the words themselves express the intent of the legislature . . . and thus there is no need to construe the statute .... Anderson v. Ludgin, 175 Conn. 545, 552, 400 A.2d 712 (1978).” (Internal quotation marks omitted.) Lamb v. Burns, 202 Conn. 158, 167, 520 A.2d 109 (1987). “Where the language used by the legislature is plain and unambiguous, there is no room for construction by the courts and the statute will be applied as its words direct. Muha v. United Oil Co., 180 Conn. 720, 730, 433 A.2d 1009 (1980).” (Internal quotation marks omitted.) Lamb v. Burns, supra, 168.

Moreover, there is nothing in the language of § 52-594 that serves as a basis for extending its provisions to § 13a-144. Section 52-594, by its express language, extends the time limitation for instituting a lawsuit. It does not extend the time limitation for providing the statutory notice necessary as a condition precedent to the institution of a suit. The purpose of the notice is to allow the commissioner to make a timely investigation. Delaying notice for one year and ninety days would compromise the purpose of § 13a-144.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 13a-144 provides in pertinent part: “Any person injured in person or property through the neglect or default of the state ... by means of any defective highway ... or, in the case of the death of any person by reason of any such neglect or default, the executor or administrator of such person, may bring a civil action to recover damages sustained thereby against the commissioner in the superior court. No such action shall be brought except within two years from the date of such injury, nor unless notice of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner.”

       The issue the trial court committed to the jury was whether the allegedly defective condition of the highway was the sole proximate cause of the decedent’s injuries and subsequent death. In view of our conclusion that the notice was defective, we need not address that issue.

       General Statutes § 52-599 provides in pertinent part: “(a) A cause or right of action shall not be lost or destroyed by the death of any person, but shall survive in favor of or against the executor or administrator of the deceased person.”

       General Statutes § 52-594 provides in pertinent part: “If the time limited for the commencement of any personal action, which by law survives to the representatives of a deceased person, has not elapsed at the time of the person’s death, one year from the date of death shall be allowed to this executor or administrator to institute an action therefor.”

       On February 17, 1984, State Representative Marilyn Roche sent the commissioner a letter discussing the details of Haddad’s accident and subsequent death, and requesting that the commissioner give the defective condition of the highway his highest priority. Similar letters were sent to the commissioner by a Wilton resident on March 3, 1984, and by State Representative Christine Niedermeier on March 13, 1984. The defendant stipulated that he received all these letters within the ninety day period.

       We do not decide that the notice must conform to any particular format. It must, however, reasonably construed, indicate (1) it is given by or on behalf of an injured party (2) who intends to claim damages.

       The plaintiff asks us to rely on case law from other jurisdictions to support her argument that notice is not required in causes of action for death. Our examination of those statutes that served as a basis for those decisions reveals that those statutes are textually significantly different from those of Connecticut.

       Both of the cases cited by the plaintiff, Doucette v. Bouchard, 28 Conn. Sup. 460, 265 A.2d 618 (1970), and Leahy v. Cheney, 90 Conn. 611, 98 A. 132 (1916), dealt with the extension of the statute of limitations for common law causes of action. Neither case dealt specifically with waiver of sovereign immunity statutes nor with the extension of notice of time limitations.


author: Berdon, J.

text:
    Lumbermens Mutual Casualty Company v. Jill Huntley
    (14391)
    Peters, C. J., Callahan, Glass, Borden and Berdon, Js.

      Argued March 25
    decision released July 21, 1992

      Michael Brodinsky, for the appellant (plaintiff).

      Herbert Watstein, for the appellee (defendant).
   Berdon, J.

The principal issue in this appeal is whether an insurer, who provides underinsured motorist coverage, may limit its liability by taking credit for a personal payment made by an underinsured tortfeasor to an insured. The defendant insured, Jill E. Huntley, was seriously injured when her car was struck by an automobile operated by Michael R. Panus. After he had exhausted the limits of his liability policy, Panus personally paid the defendant the sum of $50,000 pursuant to a settlement agreement. The defendant’s insurer, the plaintiff, Lumbermens Mutual Casualty Company, sought credit for the payment in the form of a reduction of its liability for underinsured motorist coverage. This appeal follows the trial court’s confirmation of the arbitration panel’s award in favor of the defendant. We now reverse.

The parties agreed to the following facts. On May 25, 1989, the defendant was driving home when an automobile driven by Panus crossed over into her lane and struck her vehicle head-on. On April 18, 1991, in her suit against Panus, the trial court rendered a judgment of $1,000,000 in favor of the defendant. Panus was insured by Allstate Insurance Company, which paid the full $100,000 limit of its policy to the defendant. Panus, himself, then paid an additional $50,000 to the defendant.

The defendant’s underinsured motorist policy issued by the plaintiff provided coverage up to $300,000. Following Panus’ personal payment, a dispute arose between the defendant and the plaintiff as to whether the plaintiff could reduce its liability to the defendant by $50,000, the amount of the tortfeasor’s personal payment, in addition to the $100,000 reduction for the amount paid by the tortfeasor’s liability carrier. The defendant’s insurance policy provided: “Any amounts otherwise payable for damages under this [underinsured] coverage shall be reduced by all sums: 1. Paid because of the ‘bodily injury’ by or on behalf of persons or organizations who may be legally responsible.”

Pursuant to the terms of the policy, the parties submitted to arbitration the sole legal issue of whether General Statutes (Rev. to 1989) § 38-175c, now reorganized and recodified as General Statutes § 38a-336 (b) and (d), and § 38-175a-6 (d) (1) of the Regulations of Connecticut State Agencies permit the plaintiff to reduce its coverage by the $50,000 paid by the tortfeasor. The parties stipulated to the fact that the tortfeasor had personally paid the sum of $50,000 to the defendant. In a split decision, the arbitrators decided that the plaintiff was not entitled to deduct the $50,000 payment by the tortfeasor.

The trial court denied the plaintiffs application to vacate the arbitrators’ award. Relying on American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 530 A.2d 171 (1987), the trial court concluded that the plaintiff could not take credit for the tortfeasor’s payment because it was a personal payment, not a payment made by his automobile insurance liability carrier.

On appeal, the plaintiff claims that the trial court improperly upheld the arbitrators’ decision that the tortfeasor’s personal payment could not be deducted from its payment of underinsured motorist coverage to the defendant. The plaintiff argues that the setoff of the tortfeasor’s payment is warranted both by § 38-175a-6 (d) of the regulations, which specifically permits “reduction of limits to the extent that damages have been . . . paid by or on behalf of any person responsible for the injury,” and by the defendant’s insurance policy, which requires reduction of all sums paid “by or on behalf of persons or organizations who may be legally responsible.” We agree with the plaintiff that an underinsured motorist carrier may limit its liability by taking credit for a tortfeasor’s personal payment to the insured, and we reverse the trial court.

In reviewing compulsory arbitration cases, this court must conduct a de novo review of the arbitrators’ interpretation and application of the law. American Universal Ins. Co. v. DelGreco, supra, 191. The defendant argues that § 38-175a-6 (d) (1) of the regulations, to the extent that it allows for the setoff, is inconsistent with the language and intent of § 38-175c (b) (1), which requires an insurance carrier to pay its insured “after the limits of liability under all bodily injury liability bonds or insurance policies . . . have been exhausted . . . .” The defendant contends that the legislature, in amending § 38-175c to include subsection (b) (1), impliedly repealed § 38-175a-6 (d) (1) of the regulations.

We begin our analysis with the history and relationship between § 38-175c and § 38-175a-6 (d) (1) of the regulations. Section 38-175C, which provides that all automobile liability policies must include uninsured motorist coverage, was first enacted in 1967 and did not prohibit the reduction of uninsured motorist coverage by the amount of a tortfeasor’s personal payment. Public Acts 1967, No. 510. Pursuant to General Statutes § 38-175a, the insurance commissioner adopted regulations, effective January 1, 1968, which provide in pertinent part: “[The automobile liability insurance] policy may provide for the reduction of limits to the extent that damages have been . . . paid by or on behalf of any person responsible for the injury . . . .” Regs., Conn. State Agencies § 38-175a-6 (d) (1); Fidelity & Casualty Co. v. Darrow, 161 Conn. 169, 286 A.2d 288 (1971).

In 1979, § 38-175c was amended to include subsection (b) (1), which requires an insurance carrier to provide underinsured motorist coverage “after the limits of liability under all bodily injury liability bonds or insurance policies . . . have been exhausted . . . .” The legislative history indicates that § 38-175e was amended solely for the purpose of providing underinsured motorist coverage. Public Acts 1979, No. 79-235; 22 S. Proc., Pt. 5,1979 Sess., p. 1354; 22 H.R. Proc., Pt. 16,1979 Sess., p. 5341. The regulations that apply to uninsured motorist coverage also apply to underinsured motorist coverage. In 1983, § 38-175c was amended further to require that underinsured motorist coverage equal liability coverage. Public Acts 1983, No. 83-461. Neither amendment, in 1979 or in 1983, prohibited the setoff of a tortfeasor’s personal payment.

With this background in mind, we approach the issue of whether the plaintiff is entitled to a credit for the tortfeasor’s payment. First, as we noted above, the sole reason for amending § 38-175c to include subsection (b) (1) was to provide for underinsured motorist coverage and not to prohibit an insurance carrier from reducing underinsured motorist coverage when appropriate. The obvious purpose of the language of § 38-175c (b) (1) on which the defendant relies—namely, that the insurer must pay its insured “after the limits of liability . . . have been exhausted”—is to trigger the point at which the underinsured motorist policy takes effect.

Second, although this is a question of first impression, our conclusion that an underinsured motorist carrier may limit its liability by taking credit for a tortfeasor’s personal payment to the insured is supported by our previous analysis and interpretation of both General Statutes § 38-175c and § 38-175a-6 (d) of the regulations. In Wilson v. Security Ins. Co., 213 Conn. 532, 538-39, 569 A.2d 40, cert. denied, 498 U.S. 814, 111 S. Ct. 52, 112 L. Ed. 2d 28 (1990), we determined that § 38-175a-6 of the regulations, which also allows setoffs for workers’ compensation benefits, is consistent with the coverage requirements of § 38-175c, the statute at issue in the present case. We also observed that General Statutes § 38-175c “does not require that uninsured motorist coverage be made available when the insured has been otherwise protected ... or when the uninsured motorist has other resources available to protect the insured. Nor does the statute provide that the uninsured motorist coverage shall stand as an independent source of recovery for the insured, or that the coverage limits shall not be reduced under appropriate circumstances. . . . Roy v. Centennial Ins. Co., 171 Conn. 463, 472-73, 370 A.2d 1011 (1976).” (Emphasis in original; internal quotation marks omitted.) Wilson v. Security Ins. Co., supra, 538. We further noted that “[s]ection 38-175c does not specifically prohibit the adoption of a regulation permitting the reduction of uninsured motorist coverage, whereas § 38-175a explicitly authorizes the commission to adopt regulations relating to the insuring agreements, exclusions, conditions and other terms applicable to . . . uninsured motorists coverages.” (Internal quotation marks omitted.) Id. Here, as in Wilson, we conclude that § 38-175a-6 (d) (1) of the Regulations of Connecticut State Agencies, which allows the setoff of a tortfeasor’s personal payment, is consistent with the coverage requirements of General Statutes § 38-175c.

Furthermore, the legislature is presumed to be aware of the judicial construction placed upon its enactments. Nationwide Ins. Co. v. Gode, 187 Conn. 386, 395 n.7, 446 A.2d 1059 (1982). Since 1979, when underinsured motorist coverage was mandated, § 38-175c has been amended five times, yet, the legislature has never taken action to prohibit an underinsured motorist carrier from reducing payment to its insured in accordance with the regulations. We can find nothing to support the claim that the legislature intended a contrary construction of the statute. We hold that an uninsured motorist carrier may limit its liability by taking credit for a payment made by a tortfeasor to the insured.

The judgment of the trial court is reversed and the case is remanded to the trial court with the direction to grant the application to vacate the arbitration award.

In this opinion the other justices concurred.

       The plaintiff appealed to the Appellate Court and we transferred the appeal to this court in accordance with Practice Book § 4023 and General Statutes § 51-199 (c).

       General Statutes (Rev. to 1989) § 38-175c, now reorganized and recodified as General Statutes § 38a-336 (b) and (d), provides in pertinent part:
      “(a) Every [automobile liability insurance] policy shall provide insurance, herein called uninsured motorist coverage ....
      “(b) (1) An insurance company shall be obligated to make payment to its insured up to the limits of the policy’s uninsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements, but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured’s uninsured motorist coverage, exceed the limits of the insured’s uninsured motorist coverage.
      “(2) For the purposes of this section, an ‘underinsured motor vehicle’ means a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made under subdivision (1) of this subsection.”

       Section 38-175a-6 (d) of the Regulations of Connecticut State Agencies provides in pertinent part that an insurance policy “may provide for the reduction of limits to the extent that damages have been (1) paid by or on behalf of any person responsible for the injury.”

       See footnote 10, infra.

       The defendant also claims that if the plaintiff is entitled to reduce its payment to her by the amount of the tortfeasor’s payment, the plaintiff should be allowed credit for the tortfeasor’s cash payment of $31,000 only, and not for his promissory note of $19,000. The record clearly indicates, however, that both parties stipulated to the fact that the tortfeasor had paid the sum of $50,000 to the defendant. Having never submitted this issue of fact for arbitration, the defendant cannot raise the issue for the first time on appeal.

       General Statutes (Rev. to 1989) § 38-175a, now reorganized and recodified as General Statutes § 38a-334, provides in pertinent part: “The insurance commissioner shall adopt regulations with respect to minimum provisions to be included in automobile liability insurance policies .... Such regulations shall relate to the insuring agreements, exclusions, conditions and other terms applicable to the bodily injury liability, property damage liability, medical payments and uninsured motorist coverages under such policies . . . .”

       Portions of § 38-175a-6 (d) of the Regulations of Connecticut State Agencies were subsequently amended, but the language of subsection (d) (1) was not changed. The amended regulations went into effect February 1, 1975.

       Senator James J. Murphy, Jr., explained during the Senate proceedings that this bill requires “that once the liability insurance of the so-called responsible or negligent party has been exhausted, if there is additional coverage under one’s uninsured motorists plan, then payment under that program would be triggered and allow for the greater recovery for the insured . . . .” 22 S. Proc., Pt. 5, 1979 Sess., p. 1354. Representative Silvio A. Mastrianni noted during the proceedings in the House of Representatives that the bill “requires coverage be provided against the underinsured motorist.” 22 H.R. Proc., Pt. 16, 1979 Sess., p. 5341.

       “Since underinsured motorist coverage, as defined in General Statutes § 38-175c, can be determined only by reference to and in comparison with the insured’s uninsured motorist coverages, and since claim is made against an insured’s uninsured motorist coverage after it is determined that the at-fault party is underinsured, the regulations which apply to uninsured motorist coverage must equally apply to underinsured motorist coverage. Nationwide Ins. Co. v. Gode, 187 Conn. 386, 399-400, 446 A.2d 1059 (1982).” (Internal quotation marks omitted.) General Accident Ins. Co. v. Wheeler, 221 Conn. 206, 210-11, 603 A.2d 385 (1992).

       To support her position, the defendant relies primarily on our holding in American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 530 A.2d 171 (1987). There, we held that General Statutes § 38-175c and § 38-175a-6 (d) (1) of the Regulations of Connecticut State Agencies did not allow an insurer credit for payments to its insured pursuant to a dram shop policy. Id., 199. We explained in DelGreco that General Statutes § 30-102 “establishes a cause of action that did not exist at common law.” American Universal Ins. Co. v. DelGreco, supra, 198, quoting Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 348-49, 493 A.2d 184 (1985). General Statutes (Rev. to 1983) § 30-102 provides in pertinent part: “If any person, by himself or his agent, sells any alcoholic liquor to an intoxicated person, and such purchaser, in consequence of such intoxication, thereafter injures the person or property of another, such seller shall pay just damages to the person injured . . . .” Under § 30-102, which creates a form of strict tort liability, there is no need to establish a causal relation between the sale of liquor and the injury. American Universal Ins. Co. v. DelGreco, supra, 199; Sanders v. Officers Club of Connecticut, Inc., supra, 349. A dram shop payment is “made on behalf of a liquor establishment which serves alcohol to an intoxicated person who thereafter causes injury to a third party.” American Universal Ins. Co. v. DelGreco, supra. Because § 30-102 does not require proof of causation, we concluded in DelGreco that a payment by a dram shop policy is not a payment made “by or on behalf of any person responsible for the injury” as is required by the regulation in order to invoke the setoff. Id. In contrast, the issue in this case is whether setoff exists when the payment is made by a responsible party. “Responsible party,” as used in the regulations, clearly refers to the tortfeasor who caused the injury to the insured. Thus, our holding in DelGreco is inapposite to this case.

       “Regulations issued by the insurance commissioner to implement the statutes governing uninsured motorist coverage are presumed valid and have the force and effect of a statute.” Dugas v. Lumbermens Mutual Casualty Co., 217 Conn. 631, 641, 587 A.2d 415 (1991); Travelers Ins. Co. v. Kulla, 216 Conn. 390, 399, 579 A.2d 525 (1990); Pecker v. Aetna Casualty & Surety Co., 171 Conn. 443, 449, 370 A.2d 1006 (1976). The rule disfavoring implied repeal of a statute applies to the repeal of a regulation issued pursuant to a statute, especially when the regulation has been approved by the legislative regulation review committee, as in the instant case. Dugas v. Lumbermens Mutual Casualty Co., supra.


text:
    Daniel J. Kelly v. Americo Figueiredo et al.
    (14433)
    Peters, C. J., Callahan, Glass, Borden and Berdon, Js.
    Argued June 5
    decision released July 21, 1992

      Joseph T. Sweeney, with whom was James M. Sconzo, for the appellants (defendants-third party plaintiffs).

      Richard C. Robinson, with whom was Jeffery P. Apuzzo, for the appellee (third party defendant).
   Peters, C. J.

The principal issue in this appeal is whether an exclusion clause in a liquor seller liability insurance policy is sufficiently ambiguous so that it should be read to provide coverage for damages caused by an assault and battery by an intoxicated patron. The defendants, Americo Figueiredo, permittee of the Madison Cafe in Hartford, and its backer, Tomar, Inc., (the insured) sought to implead the Calvert Insurance Company (Calvert) as a third party defendant in a civil action brought against the insured by the plaintiff, Daniel J. Kelly. Calvert filed a motion to strike the third party complaint, which was granted by the trial court, Stengel, J. The trial court, M. Hennessey, J., subsequently rendered judgment in favor of Calvert on the third party complaint. The insured appealed to the Appellate Court, and we transferred the matter to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm.

In reviewing the trial court’s judgment following the granting of Calvert’s motion to strike, we “must take the facts to be those alleged in the [third party] plaintiff’s complaint and construe the complaint in the manner most favorable to sustaining its legal sufficiency.” Michaud v. Wawruck, 209 Conn. 407, 408, 551 A.2d 738 (1988); Blancato v. Feldspar Corporation, 203 Conn. 34, 36, 522 A.2d 1235 (1987). Accordingly, we assume the following facts as alleged in the insured’s third party complaint. In January, 1990, Calvert issued to the insured a liquor seller liability insurance policy, effective from January 5, 1990, to January 5, 1991. Under the policy, Calvert agreed to pay damages and to provide the services of defense counsel if the insured were charged with liability under the Connecticut Liquor Control Act, General Statutes §§30-1 through 30-113, for injuries sustained by any person as a result of the alleged selling or giving of any alcoholic beverage at the Madison Cafe. The policy included the following exclusionary endorsement: “assault and battery exclusion: It is agreed that the insurance does not apply to bodily injury or property damage arising out of assault and battery or out of any act or omission in connection with the prevention or suppression of such acts, whether caused by or at the instigation or direction of the insured, his employees, patrons or any other person.”

On January 14, 1991, Daniel J. Kelly filed a substitute complaint against the insured, pursuant to the Connecticut Dram Shop Act, General Statutes § 30-102. Kelly alleged that he had sustained injuries on May 22, 1990, when he was struck and stabbed by a Madison Cafe patron to whom the insured had sold alcohol while that patron was intoxicated. The complaint did not allege that the patron who had struck Kelly was attempting to prevent or suppress an assault and battery.

On June 13, 1991, the insured filed a revised third party complaint against Calvert, seeking to force Calvert to defend the insured against Kelly’s claim and to indemnify it in case of any liability. Thereafter, Calvert successfully moved to strike the third party complaint on the ground that the policy’s assault and battery exclusion relieved Calvert of any obligation to defend or indemnify the insured in the circumstances of this case.

The insured appealed from the ensuing judgment in favor of Calvert, raising the following three claims: (1) the exclusion clause in Calvert’s liquor seller liability insurance policy, properly construed, does not exclude coverage for the assault and battery alleged by Kelly; (2) the exclusion clause should be construed in favor of coverage because the clause is ambiguous; and (3) public policy considerations require a construction of the exclusion clause to permit coverage for Kelly’s claim.

I

The insured maintains first that the assault and battery exclusion clause by its own terms “plainly and clearly” imposes liability on Calvert for the dram shop claim raised by Kelly. Specifically, the insured asserts that the clause at issue excludes coverage not for generic assaults and batteries, but only for assaults and batteries taking place “in connection with the prevention or suppression of” other assaults and batteries. Calvert argues, on the other hand, that the exclusion clause applies to all assaults and batteries. We agree with Calvert’s interpretation of the exclusion clause.

Deciding the scope of the exclusion clause “involves a determination of what coverage the insured expected to receive and what coverage the insurer expected to provide as disclosed by the language of the policy.” Aetna Life & Casualty Co. v. Bulaong, 218 Conn. 51, 60, 588 A.2d 138 (1991); Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 583, 573 A.2d 699 (1990); Marcolini v. Allstate Ins. Co., 160 Conn. 280, 283, 278 A.2d 796 (1971). The words of the policy must be accorded their natural and ordinary meaning. Hammer v. Lumberman’s Mutual Casualty Co., supra. “[C]ourts cannot indulge in a forced construction ignoring provisions or so distorting them as to accord a meaning other than that evidently intended by the parties.” (Internal quotation marks omitted.) Id.

The exclusion clause provides in relevant part: “[T]he insurance does not apply to bodily injury or property damage arising out of assault and battery or out of any act or omission in connection with the prevention or suppression of such acts . . . .” The insured maintains that the prepositional phrase, “in connection with the prevention or suppression of such acts,” modifies both “assault and battery” and “any act or omission.” It argues, therefore, that assaults and batteries are excluded from coverage only when committed in the prevention or suppression of other assaults and batteries.

The repetition of the words “out of” before “assault and battery” and before “any act or omission” forecloses the insured’s construction of the clause. If we were to adopt that interpretation, the second use of “out of” would be rendered superfluous. “If it is reasonably possible to do so, every provision of an insurance policy must be given operative effect.” Streitweiser v. Middlesex Mutual Assurance Co., 219 Conn. 371, 376, 593 A.2d 498 (1991); A. M. Larson Co. v. Lawlor Ins. Agency, Inc., 153 Conn. 618, 621-22, 220 A.2d 32 (1966). The policy therefore does not “plainly and clearly” provide coverage to the insured on Kelly’s assault and battery claim. Cf. Gregory v. Western World Ins. Co., 481 So. 2d 878, 881 (Ala. 1985) (construing an identical exclusion clause and stating that the clause applies to assaults and batteries); Thornton v. Illinois Founders Ins. Co., 84 Ill. 2d 365, 371, 418 N.E.2d 744 (1981) (construing an identical exclusion clause and stating that “[i]t is clear that, under the policy, acts constituting battery are excluded” from coverage). On its face, the exclusion clause does not cover Kelly’s claim against the insured.

II

The insured next claims, in the alternative, that even if the policy does not clearly include coverage for assaults and batteries, the exclusion clause is at least ambiguous and therefore must be construed against Calvert, the drafter of the policy. The insured asserts that the exclusion clause’s ambiguity is apparent because the parties contend for different interpretations of its language. We hold, however, that the exclusion clause unambiguously relieves Calvert of any obligation to defend or indemnify the insured in connection with Kelly’s dram shop claim.

Under well established principles of contract construction, we must “construe the terms of an insurance policy in favor of insurance coverage because it is the insurance company that has drafted the terms of the policy.” Streitweiser v. Middlesex Mutual Assurance Co., supra, 375; see also Beach v. Middlesex Mutual Assurance Co., 205 Conn. 246, 250, 532 A.2d 1297 (1987); LaBonte v. Federal Mutual Ins. Co., 159 Conn. 252, 256, 268 A.2d 663 (1970). “A necessary predicate to this rule of construction, however, is a determination that the terms of the insurance policy are indeed ambiguous.” Streitweiser v. Middlesex Mutual Assurance Co., supra, 375. The fact that the parties advocate different meanings of the exclusion clause “does not necessitate a conclusion that the language is ambiguous.” Aetna Life & Casualty Co. v. Bulaong, supra, 60; Marcolini v. Allstate Ins. Co., supra, 284; compare Beach v. Middlesex Mutual Assurance Co., supra, 251 (finding ambiguity in an insurance policy where two plausible alternate readings were equally reasonable).

The exclusion clause is not ambiguous. The words at issue do not have multiple definitions. See Beach v. Middlesex Mutual Assurance Co., supra, 251 (finding the word “collapse” ambiguous as used in an insurance policy because it may mean “a catastrophic breakdown” or “a breakdown or loss of structural strength”). We can say with a high degree of certainty that the exclusion clause was intended to exclude all assaults and batteries from coverage. See Griswold v. Union Labor Life Ins. Co., 186 Conn. 507, 514, 442 A.2d 920 (1982) (finding ambiguity where “we cannot say with any degree of certainty [what the clause] was intended to exclude”). The exclusion clause therefore unambiguously relieves Calvert of any obligation to defend or indemnify the insured in this case.

III

Finally, the insured claims that the exclusion clause should not be read to exclude assaults and batteries from coverage because of “the public policy goal of assuring that the innocent victims of injuries caused by intoxicated persons be able to recover compensation for those injuries.” We disagree.

The legislature enacted § 30-102, the Dram Shop Act, in 1933, thereby creating a cause of action against liquor sellers for victims injured by intoxicated persons to whom the liquor sellers have served alcohol. The common law did not allow such a cause of action because the intoxicated person’s consumption of alcohol was held to constitute a break in the causal chain between the liquor seller and the victim. Ely v. Murphy, 207 Conn. 88, 92-93, 540 A.2d 54 (1988); Kowal v. Hofher, 181 Conn. 355, 357-58, 436 A.2d 1 (1980). In enacting § 30-102 and abrogating the common law bar to a cause of action, the legislature thus allowed some measure of recovery to victims of acts of intoxicated persons. Kowal v. Hofher, supra, 358. The legislature, however, did not require liquor sellers to maintain any level of insurance coverage for potential dram shop liability.

To discern the public policy underlying the Dram Shop Act, it is useful to compare the legislature’s enactment of § 30-102 with its actions regarding motor vehicle liability insurance. General Statutes § 14-12b requires that all motor vehicles registered in Connecticut carry automobile liability insurance. Additionally, General Statutes § 38a-336 requires all such policies to include uninsured motorist coverage, which ensures the protection of insured motorists who are legally entitled to recover damages for bodily injuries from uninsured or underinsured motorists. Streitweiser v. Middlesex Mutual Assurance Co., supra, 377, citing Harvey v. Travelers Indemnity Co., 188 Conn. 245, 249, 449 A.2d 157 (1982); American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 197, 530 A.2d 171 (1987). “The ‘public policy’ embodied in [§ 38a-336] is simply to ensure that a motorist injured by another motorist has at least $20,000 in coverage available.” Roy v. Centennial Ins. Co., 171 Conn. 463, 474, 370 A.2d 1011 (1976); see also Streitweiser v. Middlesex Mutual Assurance Co., supra, 377.

In contrast, the Dram Shop Act evinces no intent by the legislature to ensure a minimum amount of coverage; the statute merely creates a cause of action that was unavailable at common law. Although the legislature is free to require liquor sellers to maintain liability insurance for their potential dram shop liability, just as it has required motor vehicle coverage, the legislature has not done so. We, therefore, reject the insured’s suggestion that the public policy that underlies § 30-102 must override the plain meaning of the exclusion clause.

Absent any general public policy that would prohibit the operation of the assault and battery exclusion in the insured’s liquor seller liability insurance policy, the insured’s “public policy” claim devolves into an argument that we should read the ambiguous language of the exclusion clause narrowly in order to further the goal of protecting innocent victims from the harmful acts of intoxicated persons. Because we have decided in Part II, supra, that the language of the exclusion clause unambiguously relieves Calvert of any obligations on Kelly’s claim, the insured’s public policy argument must fail.

The judgment is affirmed.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 30-102. dram shop act; liquor seller liable for DAMAGE BY intoxicated PERSON. If any person, by himself or Ms agent, sells any alcoholic liquor to an intoxicated person, and such purchaser, in consequence of such intoxication, thereafter injures the person or property of another, such seller shall pay just damages to the person injured, up to the amount of twenty thousand dollars, or to persons injured in consequence of such intoxication up to an aggregate amount of fifty thousand dollars, to be recovered in an action under this section, provided the aggrieved person or persons shall give written notice to such seller within sixty days of the occurrence of such injury to person or property of Ms or their intention to bring an action under this section. In computing such sixty-day period, the time between the death or incapacity of any aggrieved person and the appointment of an executor, administrator, conservator or guardian of his estate shall be excluded, except that the time so excluded shall not exceed one hundred twenty days. Such notice shall specify the time, the date and the person to whom such sale was made, the name and address of the person injured or whose property was damaged, and the time, date and place where the injury to person or property occurred. No action under the provisions of this section shall be brought but within one year from the date of the act or omission complained of.”

       In a second count, Kelly claimed that the insured caused his injuries by its negligence in supervising its employees, failing to warn customers of the risks of patronizing the Madison Cafe, allowing violent persons on the premises, failing to control patrons, and allowing intoxicated persons to remain on the premises even when those persons became dangerous. This second claim does not arise under the Liquor Control Act, and, therefore, the insurance policy at issue does not apply to it.

       General Statutes § 14-12b provides in pertinent part: “motor vehicle REGISTRATION NOT TO BE ISSUED WITHOUT PRESENTATION OF NO-FAULT identification card or policy. ... (a) No motor vehicle registration shall be issued by the commissioner for any private passenger motor vehicle, as defined in subsection (g) of section 38a-363, unless (1) the application for registration is accompanied by a current no-fault automobile insurance identification card or a copy of a current insurance policy or endorsement issued by a company licensed to issue such insurance in this state, an approved self-insurer or issued pursuant to the plan established under section 38a-329, verifying that the applicant has the required security coverage and (2) the applicant signs and files with the commissioner, under penalty of false statement as provided for in section 53a-157, a statement on a form approved by the commissioner that the owner of the vehicle has provided and will continuously maintain throughout the registration period the minimum security required by section 38a-371 for payment of basic reparations benefits and the liabilities covered under residual liability insurance required by sections 38a-19 and 38a-363 to 38a-388 inclusive.”

       General Statutes § 38a-336 provides in pertinent part: “uninsured motorist coverage, (a) (1) Each automobile liability insurance policy shall provide insurance, herein called uninsured motorist coverage, in accordance with the regulations adopted pursuant to section 38a-334, with limits for bodily injury or death not less than those specified in subsection (a) of section 14-112, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and underinsured motor vehicles and insured motor vehicles, the insurer of which becomes insolvent prior to payment of such damages, because of bodily injury, including death resulting therefrom. Each insurer licensed to write automobile liability insurance in this state shall provide uninsured motorists coverage with limits requested by the named insured upon payment of the appropriate premium, but the insurer shall not be required to provide such coverage with limits in excess of the limits of the bodily injury coverage of the policy issued to the named insured. No insurer shall be required to provide uninsured motorist coverage to (A) a named insured or relatives residing in his household when occupying, or struck as a pedestrian by, an uninsured or underinsured motor vehicle or a motorcycle that is owned by the named insured, or (B) to any insured occupying an uninsured or underinsured motor vehicle or motorcycle that is owned by such insured.
      “(2) Notwithstanding any provision of this section to the contrary, each automobile liability insurance policy issued or renewed on and after July 1, 1984, shall provide uninsured motorist coverage with limits for bodily injury and death equal to those purchased to protect against loss resulting from the liability imposed by law unless the insured requests in writing a lesser amount, but not less than the limits specified in subsection (a) of section 14-112. Such written request shall apply to all subsequent renewals of coverage and to all policies or endorsements which extend, change, supersede or replace an existing policy issued to the named insured, unless changed in writing by the insured.”

       The insured attempts to buttress its public policy argument with the claim that the insurance policy at issue, with the assault and battery exclusion, is a “cruel hoax” insofar as “unsophisticated liquor seller[s]” like the insured might believe that the insurance policy afforded coverage for assaults and batteries. Because the insured produced no evidence in the trial court of any infirmities in the negotiation of the insurance policy, we lack the factual predicate to consider this claim.


author: Callahan, J.

text:
    State of Connecticut v. Luis A. Rivera
    (14532)
    Callahan, Glass, Covello, Borden and Berdon, Js.
    Argued June 10
    decision released July 21, 1992

      David J. Laudano, special public defender, with whom, on the brief, was Raymond W. Ganim, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Robert A. Lacobelle, former assistant state’s attorney, for the appellee (state).
   Callahan, J.

The defendant, Luis A. Rivera, was charged in an information with the crimes of murder, burglary in the first degree and assault in the third degree in violation of General Statutes §§ 53a-54a (a), 53a-101 (a) (1) and 53a-61 (a) (3), respectively. Following a trial, a jury found the defendant guilty of all three charges. He was sentenced to concurrent terms of imprisonment of thirty years on the murder count, five years on the burglary count and one year on the assault count. The defendant then appealed his convictions. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. The defendant and Camelia Bellido, although unmarried, had lived together as husband and wife for nineteen years. Some time in 1986, however, the couple separated, and, in August, 1989, Bellido was dating the victim, Aurelio Monge. At approximately 9 p.m. on August 18, 1989, the victim arrived at Bellido’s apartment in Bridgeport and began to take a shower. While the victim was in the shower, the defendant approached Bellido’s apartment house from the street, began shouting to Bellido, and eventually threw a stone through one of her windows. Thereafter, the defendant forced his way into Bellido’s apartment house by kicking in the front door. Having observed the defendant’s approach, Bellido deduced that the defendant was looking for a fight and telephoned her daughter, Mildred Sanjurjo, and asked her to telephone the police.

Realizing that the defendant was approaching her apartment, Bellido attempted to lock the door to prevent his entry, but the defendant overpowered her and pushed his way into the apartment. Upon entering the apartment, the defendant demanded to know who was in the apartment with Bellido, and she answered that she was alone. The defendant replied that he would find out who was in the apartment and that he would kill both Bellido and whomever he found in the apartment with her. The defendant then began to search the apartment, and heard the shower running. Having heard the shower, the defendant took a knife from the kitchen and went into the bathroom, where he discovered the victim. There, the defendant held the victim at knife point and ordered him, unclothed, to leave the apartment. As he left, the victim, still wet from the shower, fell down a flight of stairs. After the victim had fallen, the defendant approached him and lifted the knife above his shoulder to stab the victim. The defendant then began swinging the knife at the victim as the victim attempted to protect himself. One of the defendant’s knife thrusts entered the victim’s chest. Severely injured, the victim ran from the house and into the street where he collapsed. As the victim lay in the street, the defendant said, “You finally die you son of a bitch.” Although the victim was hospitalized almost immediately, he died four days after the assault as a result of a stab wound to his heart.

On appeal, the defendant claims: (1) that he was deprived of a fair trial when the trial court improperly denied his request to reinstruct the jury regarding the elements of first and second degree manslaughter; (2) that the trial court improperly failed to replay specified testimony to the jury; and (3) that he is entitled to a judgment of acquittal of the crime of murder because the state’s evidence was insufficient to establish beyond a reasonable doubt that he intended to cause the victim’s death.

I

The defendant first claims that he was deprived of a fair trial because the trial court improperly failed to reinstruct the jury, pursuant to his request, regarding the elements of first and second degree manslaughter. Particularly, he claims that the trial court’s failure to reinstruct the jury regarding the manslaughter offenses unduly emphasized the defendant’s burden of proof with respect to the affirmative defense of extreme emotional disturbance. We disagree.

At the conclusion of the evidence, the trial court instructed the jury regarding, inter alia, the elements of murder and manslaughter in the first and second degrees. The court also informed the jury of the elements of the affirmative defense of extreme emotional disturbance. The defendant concedes that these initial instructions were accurate, and he raises no claim of error regarding their content.

During the course of the first day of its deliberations, the jury sent a note to the trial court requesting a reinstruction as to the definition of extreme emotional disturbance. In response, the trial court again informed the jury of the elements of extreme emotional disturbance and the burden of proof regarding that defense. On the second day of its deliberations, the jury requested a written copy of the jury instructions, and the trial court informed it that written instructions were not ordinarily provided to the jury but that it would repeat any portion of the instructions that the jury wished to rehear. On the third day of its deliberations, the jury again requested the trial court to provide a clear definition of extreme emotional disturbance, and it also requested a reinstruction on manslaughter in the first degree. The trial court then accurately reinstructed the jury regarding the elements of extreme emotional disturbance and manslaughter in the first degree.

During the fourth day of the jury’s deliberations, it requested the trial court to explain the circumstances under which the burden of proof lies with the defendant. The trial court informed the jury that the state had the burden of proving beyond a reasonable doubt all of the elements of the charged offenses and that the defendant was required only to prove the affirmative defense of extreme emotional disturbance by a preponderance of the evidence. The court clearly informed the jury that it need not consider the affirmative defense unless it were to find that the state had proven all of the elements of the crime of murder beyond a reasonable doubt. Following the court’s instruction, the defendant took an exception, claiming that the trial court should have explicitly informed the jury that the defendant had no,burden of proof regarding the crime of manslaughter. Thereafter, the court recalled the jury to the courtroom and instructed them that the defendant had no burden regarding the elements of manslaughter, and that the defendant’s only burden was to prove extreme emotional disturbance. Later that day, the jury sent another note to the trial court asking, “[D]oes the defendant have to prove extreme emotional disturbance? Yes or no [?]” Once again, the trial court completely and accurately informed the jury of the elements of extreme emotional disturbance and informed it that the defendant had the burden of proving extreme emotional disturbance by a preponderance of the evidence, but that the jury would not have to consider that issue unless it found proven beyond a reasonable doubt that the defendant had intentionally killed the victim.

Following the jury’s last request regarding the burden of proof of extreme emotional disturbance, the defendant requested that the court reinstruct the jury regarding, inter alia, the elements of manslaughter in the first and second degrees. The defendant asserted that he believed that the jury was confused and required reinstruction on the elements of those crimes. The trial court concluded, however, that it had accurately responded to the jury’s inquiries and that the jury was capable of rendering a fair verdict. Thereafter, the defendant moved for a mistrial, asserting that the jury was hopelessly confused, and that the defendant’s burden of proof on extreme emotional disturbance had been overemphasized by the trial court’s numerous reinstructions. The trial court denied the defendant’s motion for a mistrial.

Practice Book § 864 provides that “[i]f the jury, after retiring for deliberations, request additional instructions, the judicial authority, after notice to the parties, shall recall the jury to the courtroom and give additional instructions necessary to respond properly to the request or to direct the jury’s attention to a portion of the original instructions.” Furthermore, “[i]f the judicial authority gives additional instructions, he also may give or repeat other instructions in order to avoid undue emphasis on the additional instructions. ...” Practice Book § 861. The plain language of § 861 clearly indicates that the trial court has discretion to determine whether additional instructions need be given. Similarly, “[a] determination of whether a mistrial is warranted is left to the sound judgment and discretion of the trial judge. State v. Gaston, [198 Conn. 490, 496, 503 A.2d 1157 (1986)].” State v. Hill, 201 Conn. 505, 510, 523 A.2d 1252 (1986).

Although the jury asked several questions regarding the elements of the crimes charged and the burden of proof of extreme emotional disturbance, the trial court consistently responded with accurate answers to the inquiries. While the court might have determined that a reinstruction on the crimes of manslaughter in the first and second degrees was appropriate, to have decided otherwise did not constitute an abuse of discretion. State v. Grant, 221 Conn. 93, 109, 602 A.2d 581 (1992). Contrary to the defendant’s assertion, the trial court’s instructions and reinstructions were “clear and comprehensible” and sufficient to “provide guidance to the jury in applying the law to the facts it [found] established.” State v. Fletcher, 10 Conn. App. 697, 704, 525 A.2d 535 (1987), aff’d, 207 Conn. 191, 540 A.2d 370 (1988); see State v. Wood, 208 Conn. 125, 132, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988); State v. Preyer, 198 Conn. 190, 199-200, 502 A.2d 858 (1985). Accordingly, we conclude that there is no merit to the defendant’s claim that he was deprived of a fair trial.

II

The defendant next claims that the trial court improperly denied his request to replay to the jury the tape-recorded cross-examination testimony of two state’s witnesses. We do not agree.

In the course of the jury’s deliberations, it asked the trial court to replay the testimony of Bellido and Wanda Rios, another of the defendant’s daughters, who was also a witness to some of the events at the scene of the victim’s stabbing. The court ordered the replay of Bellido’s testimony. After Bellido’s direct examination had been almost completely replayed, the jury presented another note to the trial court stating that it had heard enough of Bellido’s testimony, and that it no longer wanted to rehear Rios’ testimony. The defendant objected to the jury’s request to discontinue the replaying of the testimony. He asserted that fairness required that, because the jury had reheard nearly all of Bellido’s direct examination testimony, it should also rehear her cross-examination testimony. On appeal, the defendant asserts that the trial court should have replayed the cross-examination testimony of both Bellido and Rios, despite the jury’s request that it not do so.

Practice Book § 863 provides: “If the jury after retiring for deliberations request a review of certain testimony, they shall be conducted to the courtroom. Whenever the jury’s request is reasonable, the judicial authority, after notice to the prosecuting authority and counsel for the defense, shall have the requested parts of the testimony read to the jury.” “A determination of the reasonableness of the request for a review of testimony lies within the discretion of the trial court.” State v. Fletcher, supra, 703. The defendant now asserts, in effect, that it was unreasonable as a matter of law for the jury to request, and the court to order, a replay of Bellido’s direct examination but not her cross-examination. He further argues that once the jury requested to rehear Rios’ testimony, the trial court was obligated to replay her cross-examination, despite the jury’s withdrawal of its request prior to rehearing any of her testimony. We conclude, however, that the trial court acted within its discretion when it allowed the jury to rehear only that testimony that the jury indicated that it wished to rehear. We cannot conclude, as the defendant seems to advocate, that the trial court was required as a matter of law to replay more of the witnesses’ testimony than the jury believed it needed to rehear in order to reach a verdict.

III

Finally, the defendant claims that the state’s evidence was insufficient to prove him guilty of murder because it failed to establish beyond a reasonable doubt that he intended to cause the victim’s death. We are not persuaded.

“ Whether we review the findings of a trial court or the verdict of a jury, our underlying task is the same . . . . We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt.’ State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991); State v. Steiger, 218 Conn. 349, 378, 590 A.2d 408 (1991).” State v. Roseboro, 221 Conn. 430, 434, 604 A.2d 1286 (1992).

The defendant asserts that the jury could not reasonably have found beyond a reasonable doubt that he intended to cause the victim’s death. In support of this claim, the defendant makes three arguments: (1) overwhelming evidence demonstrated that the defendant was in such a state of intoxication at the time of the offense that he could not have formed the specific intent to kill the victim; (2) there were no witnesses who actually observed the entry of the knife into the victim’s chest; and (3) the evidence indicated not that he intended to cause the victim’s death, but “rather that he lost control of his emotions or was simply overcome by jealousy . . . .”

We first address the defendant’s claim that the evidence of his intoxication precluded the jury from finding beyond a reasonable doubt that he intended to cause the victim’s death. The defendant correctly asserts that some evidence was offered indicating that he had been intoxicated at the time of the offense. To the contrary, however, Nicholas Ortiz, a Bridgeport police officer, testified that, immediately following the assault on the victim, the defendant’s speech had not been slurred, he had had no observable trouble walking or descending the stairs, and that he had displayed no other observable signs of intoxication except that he had smelled strongly of alcohol. In its instructions, the court accurately informed the jury, in accordance with General Statutes § 53a-7, that it must decide: (1) whether the defendant was intoxicated at the time of the offense; and (2) if so, whether that intoxication rendered him incapable of forming the intent required for the commission of the charged offenses.

“Intoxication is not a defense to murder, but is relevant to the capacity to form specific intent. General Statutes § 53a-7; State v. Smith, 185 Conn. 63, 70 n.7, 441 A.2d 84 (1981); see, e.g., State v. Bitting, 162 Conn. 1, 7, 291 A.2d 240 (1971). Intoxication means a substantial disturbance of mental or physical capacities resulting from the introduction of substances into the body. General Statutes § 53a-7. If the cumulative effect of all the evidence, including the evidence of intoxication, justifies finding the particular mental state beyond a reasonable doubt, the . . . verdict precludes a reversal for insufficient evidence of that mental state. State v. Smith, supra, 70 n.7; see State v. Crawford, 172 Conn. 65, 69-70, 372 A.2d 154 (1976). State v. D’Antuono, [186 Conn. 414, 423-24, 411 A.2d 846 (1982)].” (Internal quotation marks omitted.) State v. Chace, 199 Conn. 102, 106, 505 A.2d 712 (1986). Viewing the trial record in its entirety, we disagree with the defendant’s contention that the evidence conclusively demonstrated that he was so intoxicated that he could not have formed the specific intent to kill the victim. The jury could reasonably have found either that the defendant was not intoxicated at the time of the offense or that his intoxication was not so debilitating as to prevent the defendant from forming the intent to kill the victim. State v. Rollinson, 203 Conn. 641, 666, 526 A.2d 1283 (1987). Accordingly, the defendant’s evidence of intoxication did not necessarily preclude the jury from finding beyond a reasonable doubt that he possessed the requisite mental state for the commission of the crime of murder.

We need address only summarily the defendant’s second insufficiency argument. Although the defendant argues that no one directly observed the knife enter the victim’s chest and, therefore, evidence of his culpability was lacking, the evidence presented at trial was overwhelming that the defendant intentionally caused the fatal injury to the victim by stabbing him in the chest after he had fallen down the stairs in Bellido’s apartment house. Finally, whether the defendant was motivated to kill the victim by jealousy or some other emotion, the jury could still have reasonably concluded that he intentionally caused the victim’s death. We conclude, therefore, that the evidence presented at trial was more than adequate to allow the jury to find proven beyond a reasonable doubt that the defendant was guilty of murder.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-54a (a) provides in pertinent part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . ."
      General Statutes § 53a-101 (a) (1) provides in pertinent part: “A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and: (1) He is armed with ... a deadly weapon or dangerous instrument . . . .”
      General Statutes § 53a-61 (a) (3) provides: “A person is guilty of assault in the third degree when . . . (3) with criminal negligence, he causes physical injury to another person by means of a deadly weapon, a dangerous instrument or an electronic defense weapon.”

       Although the defendant initially appealed to the Appellate Court, that court lacked jurisdiction; General Statutes § 51-199; and we transferred the appeal to this court.

       General Statutes § 53a-54a (a) provides in relevant part: “[I]n any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       General Statutes § 53a-7 provides: “Intoxication shall not be a defense to a criminal charge, but in any prosecution for an offense evidence of intoxication of the defendant may be offered by the defendant whenever it is relevant to negate an element of the crime charged, provided when recklessness or criminal negligence is an element of the crime charged, if the actor, due to self-induced intoxication, is unaware of or disregards or fails to perceive a risk which he would have been aware of had he not been intoxicated, such unawareness, disregard or failure to perceive shall be immaterial. As used in this section, ‘intoxication’ means a substantial disturbance of mental or physical capacities resulting from the introduction of substances into the body.”

       The defendant does not contend that the trial court’s instructions regarding intoxication were inaccurate or incomplete in any way.