author:
      Callahan, J.
      Shea, J.,

text:
    American Universal Insurance Company v. Herman DelGreco, Administrator (Estate of James M. DelGreco)
    (13067)
    Healey, Shea, Callahan, Santaniello and Glass, Js.

      (One justice dissenting)

    Argued June 11
    decision released September 1, 1987

      Jon S. Berk, with whom, on the brief, were Julie A. Harris and Julie P. Apter, for the appellant (plaintiff).

      Michael C. Jainchill, with whom, on the brief, was Kathryn Calibey, for the appellee (defendant).
   Callahan, J.

This is an appeal from a decision of the trial court, which confirmed the award of an arbitration panel in favor of the defendant, Herman DelGreco, administrator of the estate of James DelGreco.

The matter was decided by the arbitration panel upon a stipulation of facts submitted by the parties. Those pertinent to this inquiry are as follows: On December 5, 1983, James M. DelGreco sustained serious injuries, when his automobile was struck by one being driven by Ronald J. Fields, Jr. DelGreco died as a result of his injuries on July 7, 1984. Herman DelGreco, the administrator of James DelGreco’s estate, pursued claims against Fields and, pursuant to General Statutes § 30-102, the Dram Shop Act, against David’s Restaurant. The estate was paid the $20,000 limit under Fields’ motor vehicle liability policy by the Allstate Insurance Company. It also received the $20,000 policy limit under David’s Restaurant’s dram shop policy, which had been issued by the Great American Insurance Company. It was stipulated that the damages to the estate were in excess of $100,000. Thereafter, the defendant administrator made a claim for the underin-sured motorist benefits provided by an automobile insurance policy issued to the defendant’s decedent by American Universal Insurance Company. That policy provided underinsured motorist benefits in the amount of $40,000 per accident and $5000 in basic reparations benefits. American Universal paid $2335.80 in basic reparations benefits but refused to pay any underin-sured motorist benefits claiming that it was entitled, under the policy and Connecticut law, to a setoff, not only of the $20,000 paid by Allstate under Fields' automobile policy and $2335.80 in basic reparations benefits it had paid, but also, of the $20,000 paid to the estate under the dram shop policy issued to David’s Restaurant. The parties stipulated that the plaintiff is entitled to a credit for the $20,000 paid by Allstate on Fields’ policy and for the $2335.80 the plaintiff paid in basic reparations benefits. Therefore the entitlement to $17,664.20 of the $40,000 underinsured motorist benefits remains at issue.

Pursuant to § 38-175c (a) (l) of the General Statutes, and the provisions of the automobile policy issued to the defendant’s decedent, the parties submitted the following issue to the panel of arbitrators: Whether, “under the policy language and Connecticut law, the American Universal Insurance Company is entitled to an additional [setoff] in the amount of $20,000 which was paid on behalf of the dram shop.” The arbitration panel, in a memorandum of decision dated July 22, 1986, held that the setoff provisions of § 38-175c (b) (1) and the insurance regulations applied only to payments made by virtue of automobile bodily injury policies, and also that the dram shop payment was not made by or on behalf of “any person responsible for the injury” as required by § 38-175a-6 (d) (1) of the Regulations of Connecticut State Agencies. The panel, therefore, rendered an award in favor of the defendant, holding that the plaintiff was not entitled to a setoff for the dram shop payment of $20,000 made to the decedent’s estate.

Thereafter, in accordance with the provisions of General Statutes § 52-418, the plaintiff filed an application to vacate the arbitration award in the Superior Court, arguing that the panel exceeded its powers and/or imperfectly executed them. The defendant moved, pursuant to General Statutes § 52-417, for an order confirming the arbitration award. The trial court reviewed the stipulated facts and the law, and after an “independent construction of the law,” held that the arbitration panel’s interpretation of the applicable law and its conclusions were “legally and logically correct” and confirmed the award. The plaintiff took a timely appeal to the Appellate Court. Thereafter, the appeal was transferred to this court pursuant to Practice Book § 4023.

The dispositive questions raised by this appeal are: (1) What is the proper scope of judicial review of a compulsory arbitration decision and award; and (2) did the arbitration panel and the trial court err in holding that the plaintiff was not entitled to a setoff for dram shop payments under the underinsured coverage provisions of the general statutes and the insurance regulations?

I

We are first called upon to decide the proper standard of judicial review of a compulsory arbitration award. The trial court, in interpreting dictum in Wilson v. Security Ins. Group, 199 Conn. 618, 509 A.2d 467 (1986), determined that: “Wilson requires the reviewing court to consider these elements [the applicable statutes, insurance regulations and the contract of insurance] to determine whether the panel’s interpretation or conclusions of the law are legally and logically correct.” (Emphasis added.) The trial court then conducted an independent review and concluded that the arbitration panel’s decision was correct and confirmed the award.

In Wilson, this court raised doubts as to the propriety of applying the standard of judicial review applicable to voluntary arbitration proceedings to a compulsory arbitration proceeding under General Statutes § 38-175c. We specifically held that “[t]he issue of the appropriate scope of judicial review of a compulsory arbitration award is not . . . properly raised by this appeal but must await the result of the arbitration that has been ordered.” Id., 630. Additionally, we noted that voluntary and compulsory arbitrations are fundamentally different; id., 629; and that some states have recognized the need to broaden the scope of judicial review when arbitration is mandated by statute. Id., 629-30. We did not, however, determine the extent of judicial review of compulsory arbitration awards.

Ordinarily, arbitration is a creature of contract whereby the parties themselves, by agreement, define the powers of the arbitrators. O & G/O’Connell Joint Venture v. Chase Family Limited Partnership No, 3, 203 Conn. 133, 145, 523 A.2d 1271 (1987); Board of Education v. AFSCME, 195 Conn. 266, 269, 487 A.2d 553 (1985); Carroll v. Aetna Casualty & Surety Co., 189 Conn. 16, 20, 453 A.2d 1158 (1983); Malecki v. Burnham, 181 Conn. 211, 212-13, 435 A.2d 13 (1980); Waterbury v. Waterbury Police Union, 176 Conn. 401, 403, 407 A.2d 1013 (1979); Ramos Iron Works, Inc. v. Franklin Construction Co., 174 Conn, 583, 587, 392 A.2d 461 (1978). Parties who have contracted to arbitrate certain matters have no duty to arbitrate other matters which they have not agreed to arbitrate. Nor can the courts, absent a statute, compel the parties to arbitrate those other matters. See Security Ins. Co. of Hartford v. DeLaurentis, 202 Conn. 178,182-83, 520 A.2d 202 (1987); Wilson v. Security Ins. Group, supra, 622; John A. Errichetti Associates v. Boutin, 183 Conn. 481, 488, 439 A.2d 416 (1981); Frager v. Pennsylvania General Ins. Co., 155 Conn. 270, 274, 231 A.2d 531 (1967). Where the parties have voluntarily and contractually agreed to submit to arbitration and have delineated the powers of the arbitrator through their submission, then the scope of judicial review of the award is limited by the terms of the parties’ agreement and by the provisions of General Statutes § 52-418. See Bruno v. Department of Consumer Protection, 190 Conn. 14,18,458 A.2d 685 (1983); Carroll v. Aetna Casualty & Surety Co., supra, 21; Bic Pen Corporation v. Local No. m, 183 Conn. 579,583,440 A.2d 774 (1981); Waterbury v. Waterbury Police Union, supra, 403,407; American Motorists Ins. Co. v. Brookman, 1 Conn. App. 219,221-22,470 A.2d 253, cert. denied, 193 Conn. 801, 473 A.2d 1226 (1984). Thus, in determining whether an arbitrator has exceeded his authority or improperly executed the same under § 52-418 (a), the courts need only examine the submission and the award to determine whether the award conforms to the submission. Wilson v. Security Ins. Group, supra, 626-27; Board of Education v. AFSCME, supra, 271; Caldor, Inc. v. Thornton, 191 Conn. 336, 340, 464 A.2d 785 (1983), aff'd, 472 U.S. 703,105 S. Ct. 2914, 86 L. Ed. 2d 557 (1985); Waterbury Construction Co. v. Board of Education, 189 Conn. 560, 563, 457 A.2d 310 (1983); Bic Pen Corporation v. Local No. 134, supra, 584; Malecki v. Burnham, supra, 213; Waterbury v. Waterbury Police Union, supra, 404; Ramos Iron Works, Inc. v. Franklin Construction Co., supra, 587-88, 590; Board of Educations. Bridgeport Education Assn., 173 Conn. 287, 291, 377 A.2d 323 (1977). Under an unrestricted submission, the arbitrators’ decision is considered final and binding; thus the courts will not review the evidence considered by the arbitrators nor will they review the award for errors of law or fact. Wilson v. Security Ins. Group, supra, 626-27; Bruno v. Department of Consumer Protection, supra, 18-19; Carrolls. Aetna Casualty & Surety Co., supra, 19; Bridgeport v. Bridgeport Police Local 1159, 183 Conn. 102, 105-106, 438 A.2d 1171 (1981); Milford Employees Assn. s. Milford, 179 Conn. 678, 683, 427 A.2d 859 (1980); Waterbury v. Waterbury Police Union, supra; Meyers s. Lakeridge Development Co., 173 Conn. 133, 135, 376 A.2d 1105 (1977); American Motorists Ins. Co. v. Brookman, supra, 223.

Such a limited scope of judicial review is warranted given the fact that the parties voluntarily bargained for the decision of the arbitrator and, as such, the parties are presumed to have assumed the risks of and waived objections to that decision. See Bridgeport v. Bridgeport Police Local 1159, supra, 107-108; Trumbull v. Trumbull Police Local 1745, 1 Conn. App. 207, 213,470 A.2d 1219 (1984). It is clear that a party cannot object to an award which accomplishes precisely what the arbitrators were authorized to do merely because that party dislikes the results. See New Britain v. Connecticut State Board of Mediation and Arbitration, 178 Conn. 557, 563, 424 A.2d 263 (1979); Trumbull v. Trumbull Police Local 1745, supra. Thus, we have previously held that the parties should be bound by a decision that they contracted and bargained for, even if it is regarded as unwise or wrong on the merits. See Local 453, International Union of Electrical, Radio & Machine Workers v. Otis Elevator Co., 314 F.2d 25, 28 (2d Cir.), cert. denied, 373 U.S. 949, 83 S. Ct. 1680, 10 L. Ed. 2d 705 (1963); Bridgeport v. Bridgeport Police Local 1159, supra, 107; Trumbull v. Trumbull Police Local 1745, supra, 213-14.

Such is not the case with statutorily mandated or compulsory arbitration. “The simple and ineradicable fact is that voluntary arbitration and compulsory arbitration are fundamentally different if only because one may, under our system, consent to almost any restriction upon or deprivation of right, but similar restrictions or deprivations, if compelled by government, must accord with procedural and substantive due process.” Mount St. Mary’s Hospital v. Catherwood, 26 N.Y.2d 493, 500, 260 N.E.2d 508, 311 N.Y.S.2d 863 (1970); see also Carofano v. Bridgeport, 196 Conn. 623, 637-38, 495 A.2d 1011 (1985); Dearborn Fire Fighters Union, Local No. 412 v. Dearborn, 394 Mich. 229, 264, 231 N.W.2d 226 (1975); Agri-Link Corporation v. Schmitz, 272 Or. 654, 670, 538 P.2d 924 (1975). “Parties to a contract calling for statutory arbitration are not free to agree, implicitly or explicitly, that their dispute will be resolved in disregard of controlling principles of constitutional, statutory, or judge-made law, and expect the courts to approve and enforce the result.” (Emphasis added.) Detroit Automobile Inter-Ins. Exchange v. Gavin, 416 Mich. 407, 433, 331 N.W.2d 418 (1982). In Wilson v. Security Ins. Group, supra, 630, this court acknowledged that the complete insulation of statutorily mandated arbitration awards from judicial review for errors of law creates the anomaly that, without the consent of the parties, arbitrators are empowered to disregard the law in deciding issues affecting substantial rights. Therefore, we held that a higher level of judicial review of an arbitration award is warranted where the arbitration is statutorily mandated. Id.

The degree of judicial review warranted by a compulsory arbitration award has been addressed in other jurisdictions against the background of a variety of constitutional challenges to the statutory compulsory arbitration scheme. These jurisdictions have generally held that compulsory arbitration statutes that effectively close the courts to the litigants by compelling them to resort to arbitrators for a final and binding determination are void as against public policy and are unconstitutional. See Henderson v. Ugalde, 61 Ariz. 221, 224, 147 P.2d 490 (1944); Attorney General v. Johnson, 282 Md. 274, 288-90, 385 A.2d 57, appeal dismissed, 439 U.S. 805, 99 S. Ct. 60, 58 L. Ed. 2d 97 (1978); Boughton v. Farmers Ins. Exchange, 354 P.2d 1085,1089 (Okla. 1960); Smith Case, 381 Pa. 223, 230, 112 A.2d 625, appeal dismissed, 350 U.S. 858, 76 S. Ct. 105, 100 L. Ed. 762 (1955); 5 Am. Jur. 2d 526, Arbitration and Award § 9; see annot., 55 A.L.R.2d 440-41, § 5. These compulsory arbitration statutes have been held unconstitutional in that: (1) they deprive one of his property and liberty of contract without due process of the law; see Dorchy v. Kansas, 264 U.S. 286, 288, 44 S. Ct. 323, 68 L. Ed. 686 (1924); Wolff Packing Co. v. Court of Industrial Relations, 262 U.S. 522, 544, 43 S. Ct. 630, 67 L. Ed. 1103 (1923); Mengel Co. v. Nashville Paper Products & Specialty Workers Union, 221 F.2d 644, 647 (6th Cir. 1955); Simon v. St. Elizabeth Medical Center, 3 Ohio Op. 3d 164,167, 355 N.E.2d 903 (1976); (2) they violate the litigants’ seventh amendment right to a jury trial and/or the state’s constitutional access to courts provisions; see Simon v. St. Elizabeth Medical Center, supra; 5 Am. Jur. 2d, supra; and (3) they result in the unconstitutional delegation of legislative or judicial power in violation of state constitutional separation of powers provisions. See Spillman v. United States Fidelity & Guaranty Co., 179 So. 2d 454, 455 (La. App. 1965); Macaluso v. Watson, 171 So. 2d 755, 758 (La. App. 1965); Biddeford v. Biddeford Teachers Assn., 304 A.2d 387, 402-403 (Me. 1973); Local 170, Transport Workers Union of America v. Circuit Judge, 322 Mich. 332, 347-48, 34 N.W.2d 71 (1948); Sioux Falls v. Sioux Falls Firefighters Local 811, 89 S.D. 455, 461, 234 N.W.2d 35 (1975); see also 5 Am. Jur. 2d, supra.

Compulsory arbitration, per se, however, is not automatically invalid so long as fair procedures are provided by the legislature and ultimate judicial review is available. Republic Industries v. Teamsters Joint Council, 718 F.2d 628, 641 (4th Cir. 1983), cert. denied, 467 U.S. 1259,104 S. Ct. 3553, 82 L. Ed. 2d 855 (1984). Courts throughout the United States have uniformly upheld compulsory arbitration statutory schemes as against the constitutional challenges previously mentioned where due novo judicial review of the arbitrator’s award is available to either party. See Trustees of Amalga mated, Insurance v. Gelman Industries, 784 F.2d 926, 928-29 (9th Cir. 1986); New England Merchants National Bank v. Hughes, 556 F. Sup. 712, 714 (E.D. Pa. 1983); Kimbrough v. Holiday Inn, 478 F. Sup. 566, 571 (E.D. Pa. 1979); Davison v. Siana Hospital of Baltimore, 462 F. Sup. 778, 781 (D. Md. 1978); Deibeikis v. Link-Belt Co., 261 Ill. 454, 466,104 N.E. 211 (1914); Osherojfv. Chestnut Lodge, 62 Md. App. 519, 525, 490 A.2d 720, cert. denied, 304 Md. 163, 497 A.2d 1163 (1985); National Instrument Co. v. Hortigro, Inc., 121 Misc. 2d 1077, 1078-79, 469 N.Y.S.2d 566 (1983); Kuenzer v. Teamsters Union, Local No. 507, 66 Ohio St. 2d 201, 203, 420 N.E.2d 1009 (1981); Railway Co. v. Garrett, 50 Ohio St. 405, 406-407, 34 N.E. 493 (1893); Simon v. St. Elizabeth Medical Center, supra, 168; Medford Firefighters Assn. v. Medford, 40 Or. App. 519, 595 P.2d 1268, 1272 (1979); Weber v. Lynch, 473 Pa. 599, 606, 375 A.2d 1278 (1977); Smith Case, supra.

“The scope of judicial review of an arbitration award is necessarily dictated in large measure by the procedural form the arbitration proceedings take. . . . There is no requirement that a verbatim record be made. . . no formal requirements of procedure and practice . . . and no findings of fact or conclusions of law are required.” Detroit Automobile Inter-Ins. Exchange v. Gavin, supra, 428; see also 6 C.J.S. 304-305, Arbitration § 85. Unless required by the submission, the decision of the arbitrator need contain no more than the actual decision, and need not make reference to the specific claims of the parties. An explanation of the means by which he reached the award is not needed, and, in fact, has been held to be superfluous. See Bic Pen Corporation v. Local No. 134, supra, 589; Malecki v. Burnham, supra, 213-14; Ramos Iron Works, Inc. v. Franklin Construction Co., supra, 589; Gary Excavating Co. v. North Haven, 160 Conn. 411, 414, 279 A.2d 543 (1971). Thus, a standard of judicial review of compulsory arbitration proceedings which is limited to the record, and under which the reviewing court may determine only whether the award conforms to the submission, would in most cases be equivalent to no review at all and would be constitutionally suspect. Something more is required.

Since, in this case, there was a stipulation of facts, it is only necessary for its resolution that we articulate the standard of review necessary with regard to determining questions of law. Accordingly, we hold that, where judicial review of compulsory arbitration proceedings required by § 38-175c (a) (1) is undertaken under General Statutes § 52-418, the reviewing court must conduct a de novo review of the interpretation and application of the law by the arbitrators. The court is not bound by the limitations contractually placed on the extent of its review as in voluntary arbitration proceedings.

II

The plaintiff next claims that the trial court and the arbitration panel erred, as a matter of law, in deciding that the plaintiff is not entitled to set off the amount due the defendant, pursuant to his decedent’s underin-sured motorist policy, by the amount which was paid to the defendant on behalf of the dram shop, David’s Restaurant. We disagree.

In addressing this claim, we must consider the language of General Statutes § 38-175c (b) (1) and § 38-175a-6 (d) (1) of the Regulations of Connecticut State Agencies. Section 38-175c (b) (1) provides in pertinent part: “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. ...” (Emphasis added.)

Section § 38-175a-6 (d) provides in pertinent part: “The limit of the insurer’s liability may not be less than the applicable limits for bodily injury liability specified in subsection (a) of section 14-112 of the General Statutes, except that the 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. (Emphasis added.) The plaintiff relies mainly on the language of the regulation, and the public policy behind uninsured motorist coverage, to support its contention that it is entitled to set off the dram shop payment because the dram shop was “responsible for the injury” to the insured. In addition, it claims that the language, “all bodily injury liability bonds or insurance policies applicable at the time of the accident,” which is contained in § 38-175c (b) (1), is unqualified, and thus applies to any kind of insurance, including dram shop policies. In response, the defendant argues that these provisions apply only to automobile liability policies applicable at the time of the accident and to persons and/or organizations that are operators of the automobiles. The trial court agreed with the defendant’s interpretation of the statute, and we agree with the trial court.

It is clear that, when the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent. State v. White, 204 Conn. 410, 421, 528 A.2d 811 (1987); Beloff v. Progressive Casualty Ins. Co., 203 Conn. 45, 54-55, 523 A.2d 477 (1987); State v. Blasko, 202 Conn. 541, 553, 522 A.2d 753 (1987). If, however, the language is unclear, as it is with § 38-175c (b) (1), we must ascertain the intent of the legislature by examining the language of the statute, its legislative history and the purpose the statute is to serve. State v. White, supra, 422; Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986). In addition, the statute must be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation. Orticelli v. Powers, 197 Conn. 9, 14, 495 A.2d 1023 (1985); Peck v. Jacquemin, 196 Conn. 53, 63, 491 A.2d 1043 (1985).

General Statutes § 38-175c (a) (1), as amended by Public Acts 1979, No. 79-235, and which contains the subsection at issue in this case, expressly provides “[e]very such policy shall provide insurance, herein called uninsured motorist coverage, in accordance with such [insurance] regulations, 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 . . . . ” (Emphasis added.) The 1979 amendment added subsection (b) (1), quoted earlier in this opinion, and (2), which provides: “For the purposes of this section, an ‘underinsured motor vehicle’ means a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made under subdivision (1) of subsection (b) of this section.” (Emphasis added.)

In deciding whether a dram shop policy should be considered as a “bodily injury liability bond or insurance policy” for purposes of this statute, we agree with the plaintiff that the language is not crystal clear. Examining the statutory scheme in its entirety does, however, offer guidance on this issue. Section 38-175c (a) (1) refers to the mandatory minimum provisions for automobile liability policies as set forth in General Statutes § 14-112. Citrano v. Berkshire Mutual Ins. Co., 171 Conn. 248,253, 368 A.2d 54 (1976); cf. Beloff v. Progressive Casualty Ins. Co., supra, 55-59. In addition, as the defendant points out, the bodily injury liability bonds and insurance policies described in subsection (b) (2) are those which cover the tortfeasor’s motor vehicle. That subsection mandates that, in determining whether a motor vehicle is “underinsured” for purposes of § 38-175c, the aggregate of the limits of all such bonds and policies on the tortfeasor’s motor vehicle is compared against the amount of uninsured motorist coverage of the insured. If the aggregate is less than the limits of liability in the uninsured motorist portion of the insured’s policy, then the underinsurance coverage is activated. Therefore, it seems logical and rational to construe the reference to “bodily injury liability bonds and insurance policies” in subsections (a) and (b) (2) as referring only to automobile policies. Although the language of subsection (b) (1) does not specifically limit the phrase “all bodily injury bonds or insurance policies applicable at the time of the accident” to the tort-feasor’s motor vehicle as does subsection (b) (2), when it is read together with the entire statute, in order for the legislation to be consistent, it must also be interpreted as referring to any automobile policy issued to the tortfeaser.

A review of the legislative history and purpose of § 38-175c supports this interpretation. In commenting on Public Acts 1979, No. 79-235, Representative Silvio Mastrianni explained that “[a]n uninsured vehicle is generally defined as a vehicle to which no bodily injury bond or policy applies at the time of the accident. . . . Mr. Speaker, this bill requires coverage be provided against the underinsured motorist. It also requires [the] insurance company of an innocent driver to pay up to the full amount of the uninsured motorist coverage when the at fault driver’s insurance has been exhausted and a deficiency remains.” (Emphasis added.) 22 H.R. Proc., Pt. 16, 1979 Sess., p. 5341. Senator James J. Murphy, Jr., in remarking on the same bill, stated: “[w]hat this bill does is require that hereafter, when one has purchased uninsured motorist coverage, that if that coverage exceeds any insurance coverage which a responsible party has in causing injuries, that mice the liability insurance of the so-called responsible or negligent party has been exhausted, if there is additional coverage under one’s uninsured motorist’s plan, then payment under that program would be triggered and allow for the greater recovery of the insured . . . .” (Emphasis added.) 22 S. Proc., Pt. 5, 1979 Sess., p. 1354. These comments indicate a legislative intent that under-insured motorist coverage is triggered when the tortfeasor’s automobile liability coverage is exhausted. A dram shop policy is not classified as automobile coverage. Rather, it is designed to cover risks arising out of the sale of intoxicating liquors. See London & Lancashire Indemnity Co. v. Duryea, 143 Conn. 53, 58-59, 119 A.2d 325 (1955); Lincoln Casualty Co. v. Vic & Mario’s, Inc., 62 Ill. App. 2d 262, 265-66, 210 N.E.2d 329 (1965); 13A G. Couch, Insurance (2d Ed.) § 48:186. We conclude, therefore, that a dram shop policy was not intended to be considered as “bodily injury liability bonds or insurance policies” for purposes of § 38-175c (b) (1).

The plaintiff argues that, despite this conclusion, nothing in § 38-175c specifically addresses the issue of what the insurer may or may not setoff against its liability under the authority of the insurance regulations. We agree. Section 38-175a grants the insurance commissioner the authority to enact regulations governing uninsured/underinsured coverage. Roy v. Centennial Ins. Co., 171 Conn. 463, 472-73, 370 A.2d 1011 (1976); Pecker v. Aetna Casualty & Surety Co., 171 Conn. 443, 448-49, 370 A.2d 1006 (1976). The regulations, however, must carry into effect the purpose and intent of the statute pursuant to which they are enacted. See Salmon Brook Convalescent Home v. Commission on Hospital & Health Care, 177 Conn. 356, 365, 417 A.2d 358 (1979); Citrano v. Berkshire Mutual Ins. Co., 171 Conn. 248, 255, 368 A.2d 54 (1976); Berlinski v. Ovellette, 164 Conn. 482, 492, 325 A.2d 239 (1973). We also note that a limitation of liability on uninsured or underinsured motorist coverage must be construed most strongly against the insurer. 12A G. Couch, supra, § 45:652; see also Madison County Mutual Auto Ins. Co. v. Goodpasture, 130 Ill. App. 2d 946, 267 N.E.2d 31, aff’d, 49 Ill. 2d 555, 276 N.E.2d 289 (1971). The regulatory language that the plaintiff relies on must be read, therefore, in light of this principle as well as the language and intent of § 38-175c.

The plaintiff argues that Connecticut Insurance Regulation § 38-175a-6 (d) allows for setoffs of monies received pursuant to a dram shop policy. As mentioned previously, the regulation states that an insurance “policy may provide for the reduction of the insurer’s liability to the extent that damages have been (1) paid by or on behalf of any person responsible for the injury. . . . ” Both the arbitration panel and the trial court concluded that the regulation, when read in conjunction with the language and intent of § 38-175c, relates only to setoffs of amounts received from other automobile liability policies of those “responsible for the injury.” We agree. To interpret the regulation otherwise would defeat the remedial purpose of underinsured motorist coverage to protect and make whole a person injured at the hands of an uninsured/underinsured motorist. Harvey v. Traveler’s Indemnity Co., 188 Conn. 245, 449 A.2d 157 (1982); Infante v. Texas Farmers Ins. Co., 640 S.W.2d 321, 323 (Tex. App. 1982); see 12A G. Couch, supra, §§ 8:6 (e), 45:624, and cases cited therein; 2 A. Widiss, Uninsured and Underinsured Motorist Insurance (1987) § 31.4 (underinsured motorist coverage provides protection for the risk that the damages sustained by insureds will not be adequately indemnified by the liability coverage carried by a negligent insured motorist). This is manifestly true in this situation where the sums due the decedent’s estate, even if all were to be collected, are far short of the damages suffered. As the defendant argues, “an insurer may not, by contract, reduce its liability for such uninsured or underinsured motorist coverage except as § 38-175a-6 of the Regulations of Connecticut State Agencies expressly authorizes.” (Emphasis added.) Allstate Ins. Co. v. Ferrante, 201 Conn. 478, 483, 518 A.2d 373 (1986); see 2 A. Widiss, supra, § 35.2. Clearly, § 38-175a-6 (d) (1) does not expressly authorize a deduction for payments received pursuant to a dram shop policy.

In addition, we are not persuaded by the plaintiff’s argument that, under General Statutes § 30-102, a payment by a dram shop is by one “responsible for the injury” as is required by the regulation in order to invoke the setoff. We stated in Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 348-49, 493 A.2d 184 (1985), that “[§ 30-102] establishes a cause of action that did not exist at common law. Pierce v. Albanese, 144 Conn. 241, 249, 129 A.2d 606, appeal dismissed, 355 U.S. 15, 78 S. Ct. 36, 2 L. Ed. 2d 21 (1957). It creates a new tort liability which is based upon a specified course of conduct and the consequences of such conduct. Staples v. Lucas, 142 Conn. 452, 456,115 A.2d 337 (1955). The delict defined by § 30-102 is not the sale of liquor to create a condition of intoxication. It is rather the sale of liquor to one who is already intoxicated. No carnal relation between the sale and the injury is required. London & Lancashire Indemnity Co. v. Duryea, [supra, 59]. To recover under the statute, a plaintiff must bring himself squarely within its provisions. Id., 57. In each case, therefore, the trier must decide as a question of fact: whether there was (1) a sale of intoxicating liquor (2) to an intoxicated person (3) who, in consequence of such intoxication, causes injury to the person or property of another.” (Emphasis added.) Viewed from this perspective, we cannot conclude that a payment made pursuant to a dram shop policy is made by a person “responsible for the injury.” Furthermore, such a payment is not made “on behalf of any person responsible for the injury.” Instead, 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. See Sanders v. Officers Club of Connecticut, Inc., supra; 12A G. Couch, supra, § 48:186.

We hold therefore that the trial court was correct in finding that General Statutes § 38-175c and § 38-175a-6 (d) (1) of the regulations of Connecticut state agencies do not allow an insurer to reduce its liability for underinsured motorist coverage by an amount of money received by the insured pursuant to a dram shop policy.

There is no error.

In this opinion Healey, Santaniello and Glass, Js., concurred.

Shea, J.,

dissenting. I agree with part I of the opinion, which establishes a de novo standard for review of questions of law arising in a compulsory arbitration proceeding. I disagree with part II, however, which holds that only motor vehicle liability policies are included within the phrase “all bodily injury liability bonds and insurance policies applicable at the time of the accident,” which is used to establish the prescribed limits for “uninsured motorist coverage” in subsection (b) (1) of General Statutes § 38-175c and thus to define the term “underinsured motor vehicle” in subsection (b) (2) of § 38-175c. The plain intent of this reference to “all” bodily injury liability policies was that every available source of liability insurance coverage for an accident should be considered before resorting to the uninsured or underinsured motorist coverage, in pursuance of the legislative scheme to make such coverage available at the lowest possible cost. See Bobeck v. Public Service Mutual Ins. Co., 38 Conn. Sup. 318, 323, 445 A.2d 602 (1981).

In reaching the conclusion that only motor vehicle liability policies were intended to be considered in determining whether a motor vehicle is “underinsured,” the opinion necessarily overturns the regulation of the commissioner of insurance; Regs., Conn. State Agencies § 38-175a-6; authorizing the reduction of uninsured motorist coverage, and accordingly underinsured coverage, by amounts that have been “paid by or on behalf of any person responsible for the injury.” That regulation, adopted by the commissioner in accordance with the directive of General Statutes § 38-175a (a) for regulations “with respect to minimum provisions to be included in automobile liability policies,” is a reasonable interpretation of § 38-175c and is wholly consistent with the reference to “all bodily injury liability policies applicable at the time of the accident” contained in subsection (b) (1) and (2) thereof. Such a regulation, issued after proper hearings and consultations “with insurers licensed to write automobile liability insurance in this state and other interested parties” pursuant to § 38-175a (b), ought not to be set aside unless it is clearly in conflict with the statutes. In concluding that such a conflict exists, the opinion relies primarily upon some ambiguous legislative history to narrow the scope of the reference in § 38-175c (b) (2) to “all” bodily injury liability policies applicable to the accident. These inconclusive remarks of two legislators, which are only remotely related to the question before us, should not be accorded such significance as to change the plain meaning of the statute.

Accordingly, I dissent from part II of this opinion.

       The decision of the arbitration panel was two to one in favor of the defendant. Jeffrey L. Williams, a member of the panel, dissented.

       “[General Statutes (Rev. to 1983)] Sec. 30-102. liquor seller liable FOR DAMAGE BY INTOXICATED PERSONS, NOTICE OF ACTION, (a) 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, 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 his 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.”

       General Statutes (Rev. to 1983) § 38-175c, as amended by Public Acts 1983, No. 83-267, § 2, and No. 83-461, provides: “Sec. 38-175c. uninsured motorist coverage, (a) (1) Every such policy shall provide insurance, herein called uninsured motorist coverage, in accordance with such regulations, with limits for bodily injury or death not less than those specified in subsection (a) of section 14-112, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and underinsured motor vehicles and insured motor vehicles, the insurer of which becomes insolvent prior to payment of such damages, because of bodily injury, including death resulting therefrom, provided each insurer licensed to write automobile liability insurance in this state shall provide such uninsured motorists coverage with limits requested by the named insured upon payment of the appropriate premium, but such insurer shall not be required to provide such coverage with limits in excess of the limits of the bodily injury coverage of such policy issued to such named insured. No insurer shall be required to provide uninsured motorist coverage to (A) a named insured or relatives residing in his household when occupying, or struck as a pedestrian by, an uninsured or underinsured motor vehicle or a motorcycle that is owned by the named insured, or (B) to any insured occupying an uninsured or underinsured motor vehicle owned by such insured. Every such policy issued on or after October 1,1971, which contains a provision for binding arbitration shall include a provision for final determination of insurance coverage in such arbitration proceeding. With respect to any claim submitted to arbitration on or after October 1, 1983, the arbitration proceeding shall be conducted by a single arbitrator if the amount in demand is forty thousand dollars or less or by a panel of three arbitrators if the amount in demand is more than forty thousand dollars.
      “(2) Notwithstanding any provision of this section to the contrary, every such policy issued or renewed on and after July 1,1984, shall provide uninsured motorist coverage with limits for bodily injury and death equal to those purchased to protect against loss resulting from the liability imposed by law unless the insured requests in writing a lesser amount, but not less than the limits specified in subsection (a) of section 14-112. Such written request shall apply to all subsequent renewals unless changed in writing by the insured.
      “(b) (1) An insurance company shall be obligated to make payment to its insured up to the limits of the policy’s uninsured motorist coverage after the limits of liability under all bodily injury liablility 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 whieh claim is made under subdivision (1) of subsection (b) of this section.”

       “[Regs., Conn. State Agencies] Sec. 38-175a-6. minimum provision for PROTECTION AGAINST UNINSURED MOTORISTS
      “(a) Coverage. The insurer shall undertake to pay on behalf of the insured all sums which the insured shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured caused by an accident involving the uninsured motor vehicle. This coverage shall insure the occupants of every motor vehicle to which the bodily injury liability coverage applies. ‘Uninsured motor vehicle’ includes a motor vehicle insured against liability by an insurer that is or becomes insolvent.
      “(b) Arbitration. The insurance may provide but not require that the issues of liability as between the insured and the uninsured motorist, and the amount of damages, be arbitrated. The insurer may provide against being bound by any judgment against the uninsured motorist.
      “(c) Exclusions. The insurer’s obligations to pay may be made inapplicable:
      “(1) To any claim which has been settled with the uninsured motorist without the consent of the insurer;
      “(2) if the uninsured motor vehicle is owned by “(A) the named insured or any relative who is a resident of the same household or is furnished for the regular use of any of the foregoing, “(B) a self insurer under any motor vehicle law, or “(C) any government or agency therof;
      “(3) to pay or reimburse for workers’ compensation or disability benefits. “(d) Limits of liability. The limit of the insurer’s liability may not be less than the applicable limits for bodily injury liability specified in subsection (a) of section 14-112 of the general statutes, except that the 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,
      “(2) paid or are payable under any workers’ compensation or disability benefits law, or
      “(3) paid under the policy in settlement of a liability claim. The policy may also provide that any direct indemnity for medical expense paid or payable under the policy or any amount of basic reparations benefits paid for payable under the policy will reduce the damages which the insured may recover under this coverage and any payment under these coverages shall reduce the company’s obligation under the bodily injury liability coverage to the extent of the payment.
      “(e) Recovery over. The insurer may require the insured to hold in trust all rights against third parties or to exercise such rights after the insurer has paid any claim, provided that the insurer shall not acquire by assignment, prior to settlement or judgment, its insured’s right of action to recover for bodily injury from any third party.”

       “[General Statutes] Sec. 52-418. vacating award, (a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, 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.
      “(b) If an award is vacated and the time within which the award is required to be rendered has not expired, the court or judge may direct a rehearing by the arbitrators.”

       Although a few courts have applied different standards of review to a compulsory arbitration award, we find them either insufficient given the nature of compulsory arbitration proceedings or the functional equivalent of a de novo review; e.g., in Spokane v. Spokane Police Guild, 87 Wash. 2d 457, 461, 553 P.2d 1316 (1976), the court applied simply an “arbitrary and capricious” standard of review to a compulsory arbitration award. In Detroit Automobile Inter-Ins. Exchange v. Gavin, 416 Mich. 407, 443, 331 N.W.2d 418 (1982), the court adopted the following standard of review for application to statutorily required arbitration, “ ‘[wjhere it clearly appears on the face of the award or the reasons for the decision as stated, being substantially a part of the award, that the arbitrators through an error in law have been led to a wrong conclusion, and that, but for such error, a substantially different award must have been made, the award and decision will be set aside.’ . . .” (Citation omitted.)

       The language of the offset provision in the uninsured motorist portion of the insurance policy provides: “Any sums otherwise payable for damages under this coverage shall be reduced by all sums: (1) paid by or on behalf of persons or organizations who may be legally responsible.”

       “In construing a statute and determining the legislative intent, we may take judicial notice of the discussions on the floor of the General Assembly although such discussions are not controlling on statutory interpretation. See Tax Commissioner v. Estate of Bissell, 173 Conn. 232, 245, 377 A.2d 305 (1977); Miller v. Board of Education, 166 Conn. 189, 194, 348 A.2d 584 (1974); Harris v. Planning Commission, 151 Conn. 95,100,193 A.2d 499 (1963).” Nationwide Ins. Co. v. Gode, 187 Conn. 386, 391 n.5, 446 A.2d 1059 (1982).

       The plaintiff, relying on Roy v. Centennial Ins. Co., 171 Conn. 463, 474, 370 A.2d 1011 (1976), also argues that the purpose of uninsured motorist coverage is simply to ensure a “minimum” level of protection, and that where the “injured party receives more than the minimum level of protection from one of those responsible for the injuries, the statutory purpose is satisfied and no recourse to the uninsured motorist coverages is warranted.” Even if we were to agree that the dram shop is “responsible” for the injuries, we must note that there are basic differences between the policies of uninsured and underinsured motorist coverage. See 2 A. Widiss, Uninsured and Underinsured Motorist Insurance (1987) § 31.4. The statutory change which provided for underinsured coverage was a legislative response to both the Roy case and Simonette v. Great American Ins. Co., 165 Conn. 466,338 A.2d 453 (1973), and it was introduced to provide more than the minimum protection. See Harvey v. Travelers Indemnity Co., 188 Conn. 245, 249-52, 449 A.2d 157 (1982); Nationwide Ins. Co. v. Gode, 187 Conn. 386, 390-97, 446 A.2d 1059 (1982); Conn. Joint Standing Committee Hearings, Insurance and Real Estate, 1979 Sess., pp. 81-82, remarks of Joseph C. Mike, commissioner on insurance. We must therefore keep this broader policy in mind in interpreting the regulation.

       We recognize that the language of the setoff contained in the insurance contract is broader than that of the regulation. See footnote 7, supra. We indicated in Nationwide Ins. Co. v. Gode, 187 Conn. 386, 399, 446 A.2d 1059 (1982), however, that any provision of a private contract of insurance which conflicts with the statutes or regulations must give way to the latter. See General Statutes § 38-175d.

       Though the trial court did not use the words “de novo review” in reference to the standard of review it applied, its “independent construction ed the law” was its functional equivalent. It is therefore unnecessary to remand this case to the trial court for the application of the proper standard of review.


source: Caselaw Access Project

author:
Callahan, J.
      Peters, C. J., Arthur H. Healey, J.,

license: Public Domain

text:
    State of Connecticut v. Jerry Copeland
    (12828)
    Peters, C. J., Healey, Shea, Callahan and Covello, Js.

      (Two justices dissenting)

    Argued June 4
    decision released September 1, 1987

      John S. Pinney, special public defender, with whom, on the brief, was Thomas E. Gajfey, for the appellant (defendant).

      Christopher Malany, deputy assistant state’s attorney, with whom, on the brief, were Mary Galvin, assistant state’s attorney, and Mark Beubendorf and Alice Osedach, legal interns, for the appellee (state).
   Callahan, J.

The defendant was charged by substitute information with the crime of arson in the first degree in violation of General Statutes § 53a-lll (a) (l). He pleaded not guilty and elected a trial to the court. He was found guilty, and sentenced to a term of imprisonment of ten years. On appeal, he claims that the trial court erred in denying (1) his motion to suppress a statement that he made while in custody, and (2) his motion to suppress clothing seized from him while he was in custody. We find no error.

At trial, the following uncontroverted factual circumstances were revealed. On the morning of March 4, 1984, Officer Frank Kilijanski of the New Haven police department was patrolling the Fair Haven section of New Haven. The officer testified that at approximately 2:30 a.m. he had seen a man, who was later identified as the defendant, walk up to an automobile stopped on Grand Avenue. The defendant commenced shouting at the woman who was driving, and grabbed at the door handle, trying unsuccessfully to pull open the car door. The defendant then walked away. Kilijanski spoke with the woman, who said she had never seen the defendant before, and that she was very “alarmed and upset.” The officer radioed police headquarters to report a breach of the peace. At approximately 11:30 a.m. of the same day, another New Haven police officer observed the defendant in front of an apartment building on 88 James Street in New Haven. He had apparently been arguing with his girlfriend who lived in the basement apartment of the building and, when Kilijanski and other police officers arrived at the scene, the defendant became convinced that his girlfriend had reported him. At this point, Kilijanski arrested the defendant for breach of the peace. Thereafter he was released on a written promise to appear.

The next morning, Officer John Ross, also of the New Haven police department, was patrolling the Fair Haven section of New Haven. He testified that at approximately 2:30 a.m. he had seen the defendant walking up James Street from the direction of the apartment building where he had been arrested the previous day. Ross stated that he was certain it was the defendant because he had encountered him in the past. The defendant was the only person whom the officer observed on James Street.

Approximately two minutes after observing the defendant, Ross received a radio dispatch that there was a fire at an apartment building at 88 James Street. Ross arrived at the scene, inspected the damage and interviewed two witnesses, Thurman Newton, Jr., and David E. Parks, both tenants in the building. Newton told Ross that on the day before the fire, the defendant had appeared at Newton’s apartment in a very aggravated state. He was apparently upset with both his friend, Faye Singletary, who was in Newton’s apartment at the time, and her roommate, Harry Davis, who the defendant believed had taken his tape recorder. Newton explained that the defendant had pounded on his apartment door, threatened Singletary, and finally left, yelling that he would be back. Parks, who also lived with Singletary and Davis in the basement apartment of the building, informed Ross that the defendant had come back to the basement apartment in the early morning hours of March 5, 1984, the day of the fire. The defendant repeatedly called for Davis to come out and give him his tape recorder. Parks further told Ross that the defendant had yelled, “Old man, you will come out,” and that seconds later, something struck the basement window and burst into flames. As a result of his discussion with the two witnesses, Ross drove to the area where he had seen the defendant earlier that morning. He went inside a convenience store located at Grand Avenue and James Street, where he saw the defendant duck behind a food rack. When Ross asked the defendant if he knew what had happened at 88 James Street, the defendant denied having been there, or anywhere near James Street. He then agreed to accompany Ross to the crime scene.

After Ross and the defendant arrived at the scene of the fire, both Newton and Parks positively identified the defendant as the man they had described to Ross. Ross placed the defendant under arrest for disorderly conduct and threatening, and informed him of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,16 L. Ed. 2d 694 (1966). Ross put the defendant in the back of his police cruiser, pending arrival of the prisoner conveyance van. Ross testified at trial that when he later removed the defendant from the car, he noted a strong smell of “flammable liquid” coming from the back seat where the defendant had been sitting. He stated that he had to roll down the windows in the cruiser to dissipate the “flammable liquid” fumes.

After the defendant had been transported to New Haven police headquarters, Ross spoke to John Esposito, a fire investigator with the New Haven fire department, who decided that the defendant’s clothes should be seized “as evidence for a possible arson charge.” Ross drove to the correctional institution on Whalley Avenue, picked up a change of clothing for the defendant, and then drove to police headquarters. Upon arriving, Ross went to the defendant’s cellblock, handed the defendant the change of clothing he had obtained, and asked him for his clothes. The defendant responded: “Why do you want my clothes, they don’t smell like gasoline?” The defendant then disrobed, and his jacket, pants and sneakers were placed in plastic bags, Subsequent laboratory testing of the clothing confirmed the presence of gasoline on them.

The next day, the defendant’s briefcase was discovered in an alleyway near the apartment building where the fire had occurred. Officer Kilijanski, who had picked up the briefcase, testified that it had a “very strong” smell of gasoline. That same day, after again being advised of his Miranda rights, the defendant was interviewed by Esposito and Detective Vincent Fumiatti of the New Haven police department’s arson squad. Both officers testified that the defendant’s clothing, which had been returned as evidence in plastic bags, smelled of gasoline. The defendant agreed during the interview that his clothing had an odor of gasoline, but claimed that this was because he had been working on his sister’s car. He did admit, however, that he had been at the James Street apartment building just before he had gone to the convenience store where Ross found him. The defendant was then arrested for and charged with arson.

Prior to trial, the defendant moved to suppress both the statement that he had made in his cellblock to Officer Ross concerning his clothes, and his clothes that were seized without a warrant while he was in custody. Both motions were denied by the trial court. After a trial to the court, the defendant was convicted of arson in the first degree. This appeal followed.

I

The defendant first argues that the statement made by him when his clothes were taken by Ross while he was at the New Haven police headquarters was improperly admitted at trial. He moved to suppress the statement on the ground that it was the product of a custodial interrogation without proper advisement and waiver of his rights pursuant to Miranda v. Arizona, supra. The trial court denied the motion, holding that the statement had been volunteered and thus that Miranda was inapplicable to the facts of this case. We agree with the trial court’s conclusion.

We have consistently held that two conditions must exist before a criminal suspect is entitled to Miranda warnings: (1) the defendant must be in the custody of law enforcement officials; and (2) the defendant must be subjected to interrogation. State v. Burak, 201 Conn. 517, 531, 518 A.2d 639 (1986); State v. Doehrer, 200 Conn. 642, 646, 513 A.2d 58 (1986); State v. Brown, 199 Conn. 47, 51, 505 A.2d 1225 (1986). There is no dispute that the defendant was in custody. Thus, the only issue we must address is whether the defendant was subjected to interrogation when he made the statement in question.

In State v. Vitale, 197 Conn. 396, 411-12, 497 A.2d 956 (1985), we indicated that the term “interrogation” under Miranda refers both to express questioning and to any words or actions on the part of the police “ ‘that the police should know are reasonably likely to elicit an incriminating response from the suspect.’ ” Id., 411, quoting Rhode Island v. Innis, 446 U.S. 291, 301-302, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980). A statement which is not elicited as a result of interrogation, but is given freely and voluntarily without any compelling influence, is admissible in evidence. State v. Burak, supra; State v. Vitale, supra, 412.

The defendant has the initial burden of proving interrogation. State v. Doehrer, supra, 647. The record in this case indicates that Ross merely asked the defendant for his clothing, while handing him a change of clothing. There is no evidence in the record that the officer asked the defendant any questions concerning the breach of the peace charge, the disorderly conduct charge, or the impending arson charge. Nor did the officer initiate any other conversation with the defendant. Cf. State v. Burak, supra; State v. Vitale, supra, 411-12. After Ross’s request, the defendant blurted out the statement, “Why do you want my clothes, they don’t smell like gasoline?” On the basis of this evidence, we conclude that the defendant was not subjected to any words or actions of Ross that the officer should have known were reasonably likely to elicit an incriminating response from the defendant. See State v. Stankowski, 184 Conn. 121,136, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981); cf. State v. Krajger, 182 Conn. 497, 499 n.2, 438 A.2d 745 (1980). Since there was no “interrogation” there was no need for Miranda warnings and the defendant’s statement was properly admitted into evidence.

II

The defendant next claims that the clothing that he had been wearing at New Haven police headquarters, which was later introduced into evidence, should have been suppressed as the product of an unconstitutional search and seizure under the fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution. We disagree.

The defendant contends that because he was initially arrested for disorderly conduct and threatening, Ross should have seized only evidence relating to those crimes. Therefore, he argues that the seizure of his clothes was not the result of a search incident to an arrest, and that the police should have obtained a warrant before seizing the clothing. The state argues in response that a police officer may seize any evidence of a crime he finds during a search incident to a lawful custodial arrest. We conclude that the trial court was correct in ruling that the search and seizure of the clothing were incident to a lawful arrest.

It is well settled that “[t]he Fourth Amendment to the United States constitution protects the ‘right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search and seizures.’ Ordinarily, police may not conduct a search unless they first obtain a search warrant from a neutral magistrate after establishing probable cause. ‘[A] search conducted without a warrant issued upon probable cause is “per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.” ’ Schneekloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973), quoting Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S. Ct. 2022, 29 L. Ed. 2d 564, reh. denied, 404 U.S. 874, 92 S. Ct. 26, 30 L. Ed. 2d 120 (1971); see Stoner v. California, 376 U.S. 483, 486, 84 S. Ct. 889,11 L. Ed. 2d 856, reh. denied, 377 U.S. 940, 84 S. Ct. 1330,12 L. Ed. 2d 303 (1964); State v. Zindros, 189 Conn. 228, 237, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984).” State v. Badgett, 200 Conn. 412, 423-24, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986). One recognized exception to the warrant requirement is where the search has been undertaken “incident to a lawful custodial arrest.” New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981); United States v. Edwards, 415 U.S. 800, 94 S. Ct. 1234, 39 L. Ed. 2d 771 (1974); United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973); Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969); State v. Badgett, supra, 424. Exceptions to the warrant requirement “ ‘have been jealously and carefully drawn’; Jones v. United States, 357 U.S. 493, 499, 78 S. Ct. 1253, 2 L. Ed. 2d 1514 (1958); and the burden is on the state to establish the exception.” State v. Badgett, supra.

The search incident to an arrest exception to the warrant requirement “has traditionally been justified by the reasonableness of searching for weapons, instruments of escape, and evidence of crime when a person is taken into official custody and lawfully detained. United States v. Robinson, supra, [234].” (Emphasis added.) United States v. Edwards, supra, 802-803; see generally 2 W. LaFave, Search and Seizure (2d Ed.) § 5.2. In this case, it is the state’s claim that the search and seizure were conducted not for weapons or instruments of escape, but to search for evidence of a crime, specifically, the arson. The defendant cites a number of cases for the proposition that a search incident to an arrest is limited, however, to preserving evidence of the crime for which the defendant has been arrested. See, e.g., United States v. Robinson, supra; Preston v. United States, 376 U.S. 364, 84 S. Ct. 881, 11 L. Ed. 2d 777 (1964); Agnello v. United States, 269 U.S. 20, 46 S. Ct. 4, 70 L. Ed. 145 (1925); cf. Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967) (emphasizing that there must be a nexus between the item to be seized and the criminal behavior, that is, probable cause to believe that the evidence sought will aid in a particular apprehension or conviction). He reasons that this exception was never intended as a general investigatory tool by which police could conduct unlimited searches for any evidence they desired. While we agree that this exception to the warrant requirement should not be used as a pretext to search for any and all evidence; see Klingler v. United States, 409 F.2d 299, 304-305 (8th Cir.), cert. denied, 396 U.S. 859, 90 S. Ct. 127, 24 L. Ed. 2d 110 (1969); we conclude that there is no evidence in the record to support a finding in this case that the search was of such a nature. In addition, we disagree that a search incident to an arrest must be limited to evidence of the crime for which the defendant has been formally charged.

First, we note that all the cases cited by the defendant were decided prior to the United States Supreme Court decision in United States v. Edwards, supra. There, the defendant had been lawfully arrested and charged with attempting to break into a post office, at which point he was taken to the local jail and placed in a cell. Shortly after he had been arrested, an investigation at the scene of the break-in revealed that the attempted entry had been made through a wooden window, which apparently had been pried open with a pry bar, leaving paint chips on the window sill. The next morning, as a result of this investigation, police officers purchased a change of clothing for the defendant to substitute for the clothing which he had been wearing at the time of and since his arrest. His clothing was then taken from him and held as evidence. Subsequent examination of the clothing revealed paint chips which matched the samples that had been taken from the window. This evidence was admitted at trial over the defendant’s objection that it was not admissible because the warrantless seizure of his clothing was invalid under the fourth amendment. In upholding the search and seizure in this case, the United States Supreme Court reasoned that once the accused is lawfully arrested and is in custody, the effects in his possession at the place of detention that were subject to search at the time and place of his arrest may lawfully be seized without a warrant. Id., 805-808; cf. Cooper v. California, 386 U.S. 58, 87 S. Ct. 788, 17 L. Ed. 2d 730, reh. denied, 386 U.S. 988, 87 S. Ct. 1283,18 L. Ed. 2d 243 (1967). While we recognize that the evidence that was seized in Edwards was connected with the specific crime with which the defendant had been charged; United States v. Edwards, supra, 808 n.9; the reasoning of the case is, nevertheless, applicable to the situation before us. The focus in Edwards was not on the nature of the specific charge against the defendant, but on whether the police could reasonably have searched the defendant at the time and place of his arrest.

A review of the record indicates that, at the time of the defendant's arrest in this case, the police had probable cause to arrest the defendant on a charge of arson. The arresting officer had the following information available to him: The defendant had been at the scene of the fire both the day before and the day of the fire arguing with and shouting at the tenants in the basement apartment where the fire occurred. The last time he was there was seconds before an object was thrown through the basement window that burst into flames. Officer Ross had seen the defendant walking down James Street from the direction of the apartment building only minutes before receiving a radio dispatch concerning the fire. In addition, after interviewing two witnesses at the crime scene, Ross drove to a nearby convenience store hoping to find the defendant. Upon entering the store, the defendant, who was inside, ducked behind a food rack. After denying being at the apartment building, the defendant accompanied the officer back to James Street, where he was identified by the two witnesses. Ross also testified that, at that time, the defendant had a strong odor of gasoline on his clothing.

It is clear that probable cause means more than mere suspicion. Beck v. Ohio, 379 U.S. 89, 93-95, 85 S. Ct. 223,13 L. Ed. 2d 142 (1964); Brinegar v. United, States, 338 U.S. 160, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949); State v. Penland, 174 Conn. 153, 155, 384 A.2d 356, cert. denied, 436 U.S. 906, 98 S. Ct. 2237, 56 L. Ed. 2d 404 (1978). There must be facts and circumstances within the officer’s knowledge, and of which he has trustworthy information sufficient to justify the belief of a reasonable person that an offense has been or is being committed. Beck v. Ohio, supra, 91. The probable cause test then is an objective one. See generally 1W. LaFave, supra, §§ 3.1, 3.2. Viewing this information in its totality, we conclude that the officer had objective probable cause to believe that the defendant had committed the arson. The fact that the officer did not formally charge the defendant with arson at the time of the arrest for disorderly conduct and breach of the peace does not render the subsequent search and seizure of the defendant’s clothing unreasonable under the fourth amendment. See Cupp v. Murphy, 412 U.S. 291, 296, 93 S. Ct. 2000, 36 L. Ed. 2d 900 (1973); United States v. Lester, 647 F.2d 868, 873 (8th Cir. 1981); Thomas v. State, 395 So. 2d 280, 281 (Fla. App. 1981); cf. Rawlings v. Kentucky, 448 U.S. 98,112,100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980); United States v. Ruigomez, 702 F.2d 61, 66-67 (5th Cir. 1983); Dixon v. State, 343 So. 2d 1345, 1347 (Fla. App. 1977); Hatcher v. State, 274 Ind. 230, 234, 410 N.E.2d 1187 (1980).

There is no error.

In this opinion Shea and Covello, Js., concurred.

Peters, C. J.,

dissenting. I disagree with the majority’s determination, in part II, that this court has the authority to make a factual finding that the police had the authority to arrest the defendant for arson at the time when his clothing was seized. The defendant does not contest the validity of his arrest for disorderly conduct and breach of the peace. The state concedes that the evidence that the police seized bore no relationship to the crime for which the defendant was nominally arrested. The majority has now decided that this court can validate the search and seizure of this evidence as incident to a legal arrest because the defendant could validly have been arrested for the crime of arson. The testimony of record on which the majority relies might well, on remand, persuade the trial court to make the appropriate finding that the police had probable cause to arrest the defendant for arson. Remand is nonetheless the correct procedure because it allows the appropriate judicial authority to determine the credibility of the witnesses and the reliability of their observations. Acccordingly, I dissent.

In adjudicating the validity of the search and seizure that the defendant’s appeal challenges, we must take into account the significant constitutional role that trial courts play in protecting the rights guaranteed both by the fourth amendment of the United States constitution and by article first, § 7, of the Connecticut constitution. To resolve the competing interests of the police and those whom they accuse of criminal activity, we have come to rely heavily on the critical judgment of trial courts for impartial findings of probable cause to search, to arrest, and to obtain a warrant. State v. Badgett, 200 Conn. 412, 429, 512 A.2d 160, cert. denied, 479 U.S. 940,107 S. Ct. 423, 93 L. Ed. 2d 373 (1986); State v. Heinz, 193 Conn. 612, 624, 480 A.2d 452 (1984); State v. Zindros, 189 Conn. 228, 236-37, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984); State v. Federici, 179 Conn. 46, 53-54, 425 A.2d 916 (1979). When the trial court has exercised the authority thus conferred upon it, either expressly or implicitly, we have usually deferred to its judgment. We have even, on occasion, searched the record for support for the trial court’s judgment, when its factual underpinnings were not clearly articulated. See, e.g., State v. Callari, 194 Conn. 18, 23-24, 478 A.2d 592 (1984), cert. denied, 469 U.S. 1210, 105 S. Ct. 1178, 84 L. Ed. 2d 327 (1985); State v. Asherman, 193 Conn. 695, 704-10, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985). In these cases we did not, however, undertake to bypass entirely the role of the trial court in finding so crucial a constitutional fact as probable cause. I am not persuaded that we should extend these precedents, which support a judgment that the trial court in fact made, to validate this court’s sua sponte determination of the reasonableness of a finding that the trial court failed to make.“ ' “This court cannot find facts, nor, in the first instance, draw conclusions of facts from primary facts found, but can only review such findings to see whether they might legally, logically and reasonably be found.” ’ ” State v. Clark, 160 Conn. 555, 556, 274 A.2d 451 (1970); State v. Thompson, 191 Conn. 360, 373, 464 A.2d 799 (1983), cert. denied, 465 U.S. 1006,104 S. Ct. 999, 79 L. Ed. 2d 231 (1984); State v. Grisgraber, 183 Conn. 383, 384, 439 A.2d 377 (1981).

The position taken by the majority is furthermore flawed because it deprives the defendant of his due process right to notice and a fair opportunity to be heard. See Cole v. Arkansas, 333 U.S. 196, 201, 68 S. Ct. 514, 92 L. Ed. 644 (1948); Paulsen v. Manson, 203 Conn. 484, 490, 525 A.2d 1315 (1987); State v. Franko, 199 Conn. 481, 491-92, 508 A.2d 22 (1986). Had the trial court focused its attention on whether there was probable cause to hold the defendant for arson, he might then have been able, by cross-examination or by witnesses of his own, to refute the testimony that the majority now finds dispositive. See State v. Kimbro, 197 Conn. 219, 228, 496 A.2d 498 (1985). A remand would give the defendant his day in court on this issue. In other cases, most recently, for example, in State v. Jarzbek, 204 Conn. 683, 708, 529 A.2d 1245 (1987), and State v. Badgett, supra, 433-34, we have directed a remand to permit a constitutional lacuna in the record to be appropriately filled. This salutary procedure should be followed in this case.

For these reasons, I dissent.

Arthur H. Healey, J.,

dissenting. Initially, I do not disagree with the general legal principles stated in the opinion but rather in the failure of the majority to acknowledge in part II that it has arrogated to itself the factfinding function of the trial court in holding that probable cause had existed. I start by specifically referring to the majority’s statement in part I: “At trial, the following uncontroverted factual circumstances were revealed.” The majority does not point out that the entire trial was one to the court, and not before a jury, nor does it point out that the trial court, as the trier of fact, did not find all, if indeed any, of these “factual circumstances.” It is clear from the majority’s opinion that it is using the revelation of these “uncontroverted factual circumstances” as facts actually found. The “uncontroverted factual circumstances” which are referred to are not “facts” because the trial court did not find them nor did it even reach the issue of whether the police had probable cause to arrest the defendant for the crime of arson.

It is elemental that “[a] fact, however, is not admitted or undisputed simply because it is uncontradicted.” Freccia v. Martin, 163 Conn. 160, 162, 302 A.2d 280 (1972); Cutler v. MacDonald, 174 Conn. 606, 610, 392 A.2d 476 (1978). Moreover, the circumstance that a “fact” was testified to and not directly contradicted by another witness is wholly insufficient to make it a fact that can be regarded as found by the trial court. Jennings v. Reale Construction Co., 175 Conn. 16,17, 392 A.2d 962 (1978); Martin v. Kavanewsky, 157 Conn. 514, 515, 255 A.2d 619 (1969). The trial court, after determining the credibility of the witnesses and the weight to be given their testimony, found no facts to justify the majority’s conclusion that probable cause existed. While the majority admits that the trial court in this case “did not make a specific finding that there was probable came to arrest the defendant for the arson” (emphasis added), it does not point out that the trial court did not even make such an implicit finding. The majority cannot do the latter because the trial court made no probable cause ruling at all. Rather, the majority states that “it is obvious from the uncon-troverted testimony in the record that probable cause existed to arrest the defendant for arson, as well as for disorderly conduct and breach of the peace.” It has, therefore, not only found facts in derogation of our appellate function, but it has done so without considering which of the “uncontroverted factual circumstances” the trial court deemed credible and what weight it accorded any or all of them. Credibility of witnesses and the weight of their testimony is a trial court function, not ours.

It is not our appellate function to find facts; in doing so, we step outside the permissible ambit of appellate review and misconceive our function. We do not sit “as in nisi prius” and certainly do not do so to make determinations of fact that go to probable cause. See State v. Kimbro, 197 Conn. 219, 228, 496 A.2d 498 (1985). In a suppression hearing, the trial court is the trier of fact. It first determines the facts and then determines whether the facts it has found constitute probable cause. The former is obviously a fact-bound determination and the latter is at the very least a mixed question of fact and law. See Beck v. Ohio, 379 U.S. 89, 96, 85 S. Ct. 223,13 L. Ed. 2d 142 (1964). We cannot “supply” facts not found by the trial court for a ruling not even made by the trial court. This is exactly what the majority does, particularly when it states: “Viewing this information in its totality, we conclude that the officer had objective probable cause to believe that the defendant had committed the arson. The fact that the officer did not formally charge the defendant with arson at the time of the arrest for disorderly conduct and breach of the peace does not render the subsequent search and seizure of the defendant’s clothing unreasonable under the fourth amendment.” Whether the evidence recited might sustain a trial court’s finding of probable cause is properly for the trial court to pass upon after an evidentiary hearing and after that court, not this court, has found the facts. I would, therefore, remand this case to the trial court with direction to hold an evidentiary hearing on the issue of probable cause.

Because of my view on part II of the opinion, I find it unnecessary to discuss part I. This is so because the defendant’s statement in part I is so inextricably tied in time, place and impact with the validity of the taking of the defendant’s clothing that any decision on that issue should await the result of the evidentiary hearing on probable cause which I would order.

Therefore, I respectfully dissent and would remand the case to the trial court for an evidentiary hearing on the issue of probable cause under part II.

       “[General Statutes] Sec. 53a-lll. arson in the first degree: class A felony, (a) A person is guilty of arson in the first degree when, with intent to destroy or damage a building, as defined in section 53a-100, he starts a fire or causes an explosion, and (1) the building is inhabited or occupied or the person has reason to believe the building may be inhabited or occupied . . . .”

       On appeal, the defendant does not challenge the admission of this statement at trial.

       Probable cause for an arrest is determined by the objective facts available to the officer at the time of arrest. Beck v. Ohio, 379 U.S. 89, 93-95, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964); United. States v. Lester, 647 F.2d 868, 873 (8th Cir. 1981); State v. Perry, 195 Conn. 505, 508-509, 488 A.2d 1256 (1985). The trial court in this case did not make a specific finding that there was probable cause to arrest the defendant for the arson, and it is well established that we do not find facts on appeal. Lupien v. Lupien, 192 Conn. 443, 445, 472 A.2d 18 (1984); Anderson v. Anderson, 191 Conn. 46, 51,463 A.2d 578 (1983). In this case, however, it is obvious from the uncontroverted testimony in the record that probable cause existed to arrest the defendant for arson, as well as for disorderly conduct and breach of the peace. Therefore, a remand of this case to the trial court for a determination of probable cause is unnecessary. United States v. Bethea, 598 F.2d 331, 334 (4th Cir.), cert. denied, 444 U.S. 860, 100 S. Ct. 124, 62 L. Ed. 2d 81 (1979); United States v. Montos, 421 F.2d 215,219 n.1 (5th Cir.), cert. denied, 397 U.S. 1022, 90 S. Ct. 1262, 25 L. Ed. 2d 532 (1970); State v. Callari, 194 Conn. 18,20,478 A.2d 592 (1984), cert. denied, 469 U.S. 1210, 105 S. Ct. 1178, 84 L. Ed. 2d 327 (1985); cf. State v. Asherman, 193 Conn. 695, 704-10, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050,105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985).

       In United States v. Edwards, 415 U.S. 800, 808 n.9, 94 S. Ct. 1234, 39 L. Ed. 2d 771 (1974), the United States Supreme Court indicated in a footnote to its opinion that its holding was not to be interpreted as leaving law enforcement officials subject to no restraints. “This type of police conduct ‘must [still] be tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures.’ Terry v. Ohio, 392 U.S. 1, 20 [88 S. Ct. 1868, 20 L. Ed. 2d 889] (1968).” Id. The court noted that there was no question that there was probable cause for the search and seizure of the defendant’s clothing and that the defendant was arguing only that a warrant should have been served. Id. The court went on to state: “We thus have no occasion to express a view concerning those circumstances surrounding custodial searches incident to incarceration which might ‘violate the dictates of reason either because of their number or their manner of perpetration.’ . . .” Id.

       The majority does not indicate when the defendant was arrested for arson, formally or otherwise. It was, however, certainly after the search and seizure of the defendant’s clothing.