text:
    Thomas Bayusik v. Nationwide Mutual Insurance Company et al.
    (15080)
    Callahan, Katz, Palmer, Lavery and Ment, Js.
    Argued December 8, 1994
    decision released June 13, 1995

      Mark A. Milano, with whom were Eugene A. Cooney and, on the brief, Rodd J. Mantell, for the appellant-appellee (defendant Aetna Casualty and Surety Company).

      Dominick J. Thomas, Jr., with whom was Christine L. Curtiss, for the appellee-appellant (plaintiff).

      William F. Gallagher, Cynthia C. Bott, Kurt D. Koeh-ler and Thomas J. Airone, law student intern, filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.
   Palmer, J.

As in the companion case of Stevens v. Aetna Life & Casualty Co., 233 Conn. 460, 659 A.2d 707 (1995), which we have also decided today, the principal issue in this appeal concerns the proper application of No. 93-77 of the 1993 Public Acts (P.A. 93-77). The plaintiff, Thomas Bayusik, filed a demand for arbitration under the underinsured motorist provisions of an automobile liability insurance policy issued to him by the defendant Aetna Casualty and Surety Company (Aetna). The arbitration panel denied the plaintiffs claim on the ground that it had not been filed within two years from the date of the accident as required by the policy. The plaintiff thereupon filed an application in the Superior Court to vacate the panel’s award. The trial court determined that § 3 of P.A. 93-77 rendered the contractual two year limitation period unenforceable and, further, that the plaintiff’s claim was governed by the limitation period prescribed by General Statutes § 38a-336, as amended by § 2 of P.A. 93-77. See footnote 1. Upon concluding that the plaintiff had filed his claim within the limitation period of § 38a-336, as amended, the trial court granted the plaintiff’s application to vacate the arbitration award. Aetna appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We conclude that the plaintiffs claim is governed by the six year statute of limitations applicable to contract actions and not, as the trial court concluded, by § 38a-336. Because the plaintiff filed his claim within six years from the date of the accident, however, we nevertheless affirm the judgment of the trial court.

The facts material to this appeal are not disputed. On July 4, 1986, the plaintiff, while a passenger in an automobile operated by Peter Lesczcak, was injured in a two car accident caused by the negligence of another driver (tortfeasor). The plaintiff was insured under two separate automobile liability policies, one that he had purchased from the named defendant, Nationwide Insurance Company (Nationwide), and a second that had been purchased from Aetna by Adam Lesczcak, the owner of the automobile driven by Peter Lesczcak. As required by law, each of these policies contained coverage for, inter alia, damages and injuries sustained as a result of the negligence of the owner or operator of an underinsured motor vehicle.

The plaintiff commenced an action in March, 1988, against the tortfeasor for damages suffered as a result of the accident. In May, 1989, the plaintiff settled his claim with the tortfeasor for $20,000, thereby exhausting the liability limits of the tortfeasor’s policy. On April 11,1990, the plaintiff filed a written demand for arbitration under both the Aetna and the Nationwide policies. On April 29, 1993, the arbitration panel denied the plaintiffs claim against Aetna on the ground that . the plaintiff had failed to make a demand for arbitration within two years from the date of the accident as required under the policy. On May 24,1993, the plaintiff filed an application to vacate the award, claiming that, inter alia, P.A. 93-77, which took effect on May 20, 1993, restored to the plaintiff the right to seek underinsured motorist benefits under the policy.

The trial court agreed with the arbitration panel that the plaintiff had failed to comply with the Aetna policy’s two year limitation period, but concluded that § 3 of P.A. 93-77 rendered the contractual limitation period unenforceable. The trial court further concluded that the plaintiff’s claim was governed by the limitation period set forth in § 38a-336, and that the claim satisfied the tolling provisions contained therein. See footnote 1. Accordingly, the trial court rejected the award of the arbitration panel and remanded the case to the panel for further proceedings.

On appeal, Aetna contends that the trial court incorrectly determined that the plaintiff’s action was not time barred because, contrary to the conclusion of the trial court, the plaintiff had not satisfied the tolling provisions of § 38a-336. The plaintiff argues that the trial court properly rejected the award of the arbitration panel because he had tolled the three year limitation period of § 38a-336. We conclude that the only limitation period applicable to the plaintiff’s claim is the six year statutory limitation period for the filing of contract actions. Because the plaintiff filed his demand for arbitration within six years from the date of the accident, his claim was timely. We therefore affirm the judgment of the trial court.

There is no dispute either that the plaintiff’s claim for arbitration was pending on December 8, 1992, or that his case had not been finally concluded on May 20, 1993. Accordingly, the plaintiffs claim falls within the purview of § 3 of P.A. 93-77, and Aetna is precluded from enforcing the two year contractual limitation period to bar the plaintiff’s recovery of underinsured motorist benefits. We must determine, however, whether any other limitation period is applicable to the plaintiffs claim.

The trial court held that the plaintiffs demand for arbitration was governed by the limitation period contained in § 38a-336. The trial court further determined that although the plaintiff had not filed a claim within three years from the date of the accident, his claim was saved by the tolling provisions of § 38a-336. On the basis of our reading of the statute, its remedial purpose and its legislative history, we do not agree that the limitation period prescribed by § 38a-336 is applicable to the plaintiffs claim, either by incorporation through § 3 of P.A. 93-77, or by virtue of its retrospective application. We conclude, rather, that the plaintiff’s claim is subject only to the six year statute of limitations applicable to contract actions generally.

Section 3 of P.A. 93-77 provides only that no underin-sured motorist claim enumerated therein shall fail by virtue of any policy provision requiring a claim to be commenced within a “period of time less than that allowed under section 38a-336 of the general statutes, as amended by section 2 of this act.” There is nothing in this language, or in any other language of § 3 of P.A. 93-77, to indicate that the limitation period prescribed by § 38a-336 shall be incorporated into policies governed by § 3 of the act. Furthermore, the interpretation urged by Aetna is incompatible with the purpose of the tolling component of § 38a-336, which provides a means to extend the three year limitation period when an insured has not exhausted the liability limits of the tort-feasor’s policy within three years from the date of the accident. That three year period may be tolled only if an insured has notified the insurer in writing of an impending claim or action. The tolling provision was not enacted, however, until well after the time within which many insureds would have been required to provide the insurer with a notice of claim in satisfaction of the tolling component of § 38a-336. It would be unreasonable to presume, therefore, that the legislature intended to incorporate into existing policies a tolling provision with which many insureds had no opportunity to comply. Finally, the trial court’s construction of P.A. 93-77 is not consistent with the remedial purpose of the legislation; see footnote 2; because, under the trial court’s interpretation, only some of the otherwise untimely claims that were pending on December 8,1992, and had not been finally adjudicated prior to May 20, 1993, would be saved. Thus, we conclude that the limitation period prescribed by § 38a-336 is not applicable to the plaintiff’s claim by incorporation through § 3 of P.A. 93-77.

We are also unpersuaded that § 2 (e) of P.A. 93-77, which sets forth the minimum limitation period for insurance policies under § 38a-336, has retrospective applicability. “[W]e have uniformly interpreted [General Statutes] § 55-3 as a rule of presumed legislative intent that statutes affecting substantive rights shall apply prospectively only. . . . The legislature only rebuts this presumption when it clearly and unequivocally expresses its intent that the legislation shall apply retrospectively.” (Citations omitted; internal quotation marks omitted.) Darak v. Darak, 210 Conn. 462, 467-68, 556 A.2d 145 (1989). The retrospective application of § 2 (e) of P.A. 93-77 would alter the material terms of existing policies, thereby affecting substantive contractual rights and obligations that already had been settled under the express terms of those policies. See Monteiro v. American Home Assurance Co., 177 Conn. 281, 283, 416 A.2d 1189 (1979) (provision in insurance policy requiring that suit be filed within specific time period controls rights and obligations of parties). Although the legislature has the authority, within constitutional limits, to modify existing contractual relationships; see Serrano v. Aetna Ins. Co., 233 Conn. 437, 445-46, 664 A.2d 279 (1995); we conclude that the legislature did not intend to achieve such a result under § 2 (e) of P.A. 93-77.

Neither the language nor the legislative history of § 2 (e) of P.A. 93-77 supports the conclusion that the legislature intended it to have retrospective application. Unlike § 3 of P.A. 93-77, which by its express terms applies retroactively, § 2 (e) is devoid of language suggesting that it should likewise be applied to modify the terms of contracts already in existence. Indeed, the clarity with which the legislature manifested its intention that § 3 of P.A. 93-77 be given retrospective application strongly suggests that the legislature would have been explicit had it intended § 2 (e) to be similarly applied.

Furthermore, the pertinent legislative history squarely supports the conclusion that policies governed by § 3 of P.A. 93-77 are subject not to the limitation period prescribed by § 2 (e) of P.A. 93-77 but, rather, to the six year statute of limitations applicable to contract actions generally. During the floor debate on § 3 of P.A. 93-77 in the House of Representatives, Representative Robert Farr raised this very issue, stating: “As I read the language [of the proposed legislation], it says you cannot limit an action for less than three years. If a policy is already in force and has a limit of two years on it, since that would not be an enforceable limit, is there now no limit, no [period of] limitation on a claim for uninsured motorists under that existing policy?” 36 H.R. Proc., Pt. 8, 1993 Sess., p. 2746. Representative Cameron C. Staples, a proponent of the proposed legislation, responded that “my understanding is, Representative Farr, that the three year provision would apply in that case.” Id. After indicating that the plain language of the statute was not consistent with the interpretation offered by Representative Staples, Representative Farr again posed the question, noting expressly that the six year statute of limitations for contract actions appeared to be the only applicable limitation period under the express terms of the proposed enactment. Id., pp. 2746-49. After again stating that the three year period applied, Representative Staples corrected himself, explaining: “I’d like to make a comment in response to an earlier question to clarify a response that I made to a question from Representative Farr. It is my understanding that if a contract provides for a period of time less than the three [year period] . . . under this [proposed] statute . . . [then] the two year provision or the provision that is less than three years, would for all intents and purposes be invalid and we would resort to the six year statute of limitations for regular contract actions in those cases. And so that would be the period of time applicable in that case.” (Emphasis added.) Id., pp. 2753-54.

In light of the plain statutory language and the clearly expressed intent of the legislation’s proponents, we are persuaded that a claim filed under an insurance policy governed by § 3 of P.A. 93-77 is subject only to the six year statute of limitations applicable to contract actions. Accordingly, the plaintiff was required to have filed his claim for arbitration within six years from the date of the accident. Because the plaintiff did so, the trial court properly vacated the award of the arbitration panel.

The judgment of the trial court is affirmed.

In this opinion the other justices concurred.

       Public Acts 1993, No. 93-77, entitled “An Act Concerning Uninsured and Underinsured Motorists Insurance Coverage,” provides:
      “Section 1. Section 38a-290 of the general statutes is repealed and the following is substituted in lieu thereof:
      “No insurance company doing business in this state shall limit the time within which any suit shall be brought against it or [, with respect to subdivision (d) of this section,] any claim shall be submitted to arbitration on (a) a fidelity or surety bond to a period less than three years from the time when the loss insured against occurs; (b) a construction performance bond to a period less than three years from the date on which the principal last performed work under the contract; (c) a construction payment bond to a period less than three years from the date on which the claimant last performed work or supplied material for which the claim is made; [(d) the uninsured motorist provisions of a motor vehicle insurance policy to a period less than two years from the date of the accident;] and [(e)] (d) all other policies to a period less than one year from the time when the loss insured against occurs. THIS SECTION SHALL NOT APPLY TO SUITS AND ARBITRATION CLAIMS UNDER THE UNINSURED OR UNDERIN-SURED MOTORIST PROVISIONS OF A MOTOR VEHICLE INSURANCE POLICY.
      “Sec. 2. Section 38a-336 of the general statutes is repealed and the following is substituted in lieu thereof:
      “(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.
      “(b) 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.
      “(c) Each automobile liability insurance 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.
      “(d) 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 subsection (b) of this section.

        “(e) NO INSURANCE COMPANY DOING BUSINESS IN THIS STATE MAY LIMIT THE TIME WITHIN WHICH ANY SUIT MAY BE BROUGHT AGAINST IT OR ANY DEMAND FOR ARBITRATION ON A CLAIM BE MADE ON THE UNINSURED OR UNDERINSURED MOTORIST PROVISIONS OF A MOTOR VEHICLE POLICY TO A PERIOD OF LESS THAN THREE YEARS FROM THE DATE OF ACCIDENT, PROVIDED, IN THE CASE OF AN UNDERINSURED MOTORIST CLAIM THE INSURED MAY TOLL ANY APPLICABLE LIMITATION PERIOD (1) BY NOTIFYING SUCH INSURER PRIOR TO THE EXPIRATION OF THE APPLICABLE LIMITATION PERIOD, IN WRITING, OF ANY CLAIM WHICH THE INSURED MAY HAVE FOR UNDERINSURED MOTORIST BENEFITS AND (2) BY COMMENCING SUIT OR DEMANDING ARBITRATION UNDER THE TERMS OF THE POLICY NOT MORE THAN ONE HUNDRED EIGHTY DAYS FROM THE DATE OF EXHAUSTION OF THE LIMITS OF LIABILITY UNDER ALL AUTOMOBILE BODILY INJURY LIABILITY BONDS OR AUTOMOBILE INSURANCE POLICIES APPLICABLE AT THE TIME OF THE ACCIDENT BY SETTLEMENTS OR FINAL JUDGMENTS AFTER ANY APPEALS.
      “Sec. 3. (New) No uninsured or underinsured motorist claim or action pending on December 8, 1992, or brought after said date and prior to the effective date of this act, in which a settlement has not been reached or a final judgment has not been rendered prior to the effective date of this act, shall fail by reason of any contractual limitation in a motor vehicle insurance policy which limits the time within which such claim shall be submitted to arbitration or such action shall be commenced to a period of time less than that allowed under section 38a-336 of the general statutes, as amended by section 2 of this act.
      “Sec. 4. This act shall take effect from its passage.”
      Section 3 of P.A. 93-77 is deemed to be special in nature and, accordingly, has not been codified.

       “Public Act 93-77 was enacted in response to our decisions, rendered on December 8,1992, in McGlinchey v. Aetna Casualty & Surety Co., 224 Conn. 133, 617 A.2d 445 (1992), and Hotkowski v. Aetna Life & Casualty Co., 224 Conn. 145, 617 A.2d 451 (1992), wherein we concluded that an insurer was entitled to enforce an unambiguous policy provision requiring an insured to file an action for underinsured motorist benefits within two years from the date of the accident. It had been unclear, prior to the publication of McGlinehey and Hotkowski, whether General Statutes (Rev. to 1987) § 38-27, now revised and recodified as General Statutes § 38a-290, authorized an insurer to limit contractually the period within which a claim for underinsured motorist benefits could be brought and, if so, whether the limitation period was tolled while the insured, in accordance with our decision in Continental Ins. Co. v. Cebe-Habersky, 214 Conn. 209, 212-13, 571 A.2d 104 (1990), sought to exhaust the liability limits of the tortfeasor’s policy as mandated by General Statutes (Rev. to 1989) § 38-175c, now revised and recodified as § 38a-336. Consequently, prior to December 8,1992, some insureds, either in the good faith but mistaken belief that they were required, under our holding in Cebe-Habersky, to exhaust the liability limits of the tortfeasor’s policy before filing an action for underinsured motorist benefits, or, in reliance on the holdings of Superior Court decisions, subsequently overruled by McGlinehey and Hotkowski, that a contractual two year limitation period for the filing of an underinsured motorist claim was unenforceable; see footnote 17; had failed to commence an action for underinsured motorist benefits until more than two years from the date of the accident. After we concluded, in McGlinehey and Hotkowski, that those claims were barred by the two year limitation period, the legislature enacted § 3 of P.A. 93-77, which precludes an insurer from enforcing, for the category of cases enumerated therein, any contractual limitation period less than that allowed under § 38a-336, as amended by § 2 of P.A. 93-77.” Serrano v. Aetna Ins. Co., 233 Conn. 437, 443 n.7, 664 A.2d 279 (1995).

       All references hereinafter to § 38a-336 include its amendment by § 2 of P.A. 93-77.

       General Statutes § 52-576 (a) provides in pertinent part: “No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues. . . .”

       At the time of the accident, Adam Lesczcak’s policy with Aetna contained liability limits of $20,000.

       See General Statutes (Rev. to 1989) § 38-175c, now revised and recodified as § 38a-336.

       The policies required the defendants to pay underinsured motorist benefits only after the insured had exhausted the liability limits of other applicable insurance policies.

       The arbitration panel did not resolve the plaintiffs claim against Nationwide. The panel decided to postpone action on the Nationwide claim until after a final adjudication of the Aetna claim, apparently because Nationwide’s liability to the plaintiff is secondary to that of Aetna. See General Statutes (Rev. 1993) § 38a-336 (d).

       Aetna also claims that § 3 of P.A. 93-77 violates its due process and contractual rights under the United States constitution. We have fully considered, and rejected, identical claims in Serrano v. Aetna Ins. Co., 233 Conn. 437, 458, 664 A.2d 279 (1995), which we have also decided today. For the reasons stated therein, we conclude that Aetna’s constitutional challenge to § 3 of P.A. 93-77 is without merit.

       The plaintiff also seeks affirmance of the trial court’s judgment on alternate grounds, claiming, inter alia, that the limitation period of § 38a-336 is not applicable to claims governed by § 3 of P.A. 93-77. For the reasons stated hereinafter, we agree.
      We note that this claim, properly raised as an alternate ground for affir-mance, was instead raised by the plaintiff on cross appeal. Because the claim was briefed in this court and the record provides an adequate basis for its review, we treat the claim as an alternate ground for affirmance.

         See Stevens v. Aetna Life & Casualty Co., supra, 233 Conn. 473 (judgment is not final under § 3 of P.A. 93-77 until case has been finally concluded on appeal).

       In a decision released subsequent to the articulation rendered by the trial court, the Appellate Court also concluded that the limitation period prescribed by § 38a-336 is applicable to underinsured motorist claims governed by § 3 of P.A. 93-77. Aetna Life & Casualty Co. v. Braccidiferro, 34 Conn. App. 833, 841-43, 643 A.2d 1305 (1994), cert. granted, 232 Conn. 901, 651 A. 2d 743 (1995).

       It is unclear whether the trial court concluded that the limitation period prescribed by § 38a-336 has retrospective applicability to the plaintiffs claim, or that its application is mandated by incorporation through § 3 of P.A. 93-77. See also Aetna Life & Casualty Co. v. Braccidiferro, 34 Conn. App. 833, 841-43, 643 A.2d 1305 (1994), cert. granted, 232 Conn. 901, 651 A.2d 743 (1995).

       On appeal, the parties dispute the proper application of the limitation period set forth in § 38a-336 to the facts of this case. Because we conclude that the limitation period prescribed by § 38a-336 is not applicable to the plaintiff’s claim, we do not consider the issue.

       Under § 38a-336, an insured, in order to toll the three year period, must also commence suit or demand arbitration not more than 180 days after exhausting the liability limits of all applicable policies by settlements or final judgments after any appeals.

       Under the trial court’s construction of P.A. 93-77, any insured whose policy required a claim to be filed within two years from the date of the accident and who, like the plaintiff, had not filed a claim until more than three years thereafter, would be precluded from recovery unless he or she had satisfied the tolling provisions of § 38a-336.

       The legislative history of P.A. 93-77 also supports this conclusion. See discussion that follows.

       General Statutes § 55-3 provides: “No provision of the general statutes, not previously contained in the statutes of this state, which imposes any new obligation on any person or corporation, shall be construed to have a retrospective effect.”


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    Connecticut Resources Recovery Authority v. Commissioner of Environmental Protection et al. City of Norwich v. Commissioner of Environmental Protection et al. Southeastern Connecticut Regional Resources Recovery Authority v. Commissioner of Environmental Protection et al. Stuart Greenfield et al. v. Commissioner of Environmental Protection et al.
    (15013)
    (15014)
    (15015)
    (15016)
    Peters, C. J., and Callahan, Norcott, Katz and Palmer, Js.
    Argued April 19
    decision released June 13, 1995

      Richard S. Cody, for the town of Stonington.

      Richard G. Adams, with whom were Kathleen M. Conway, A. Lauren Carpenter, Shepard M. Remis, Michael Belsante and, on the brief, Andrew J. Pincus, for Riley Energy Systems of Lisbon Corporation.

      Robert E. Wright, for Connecticut Resources Recovery Authority.

      Roger E. Koontz, with whom was William B. Heim rich, for Southeastern Connecticut Regional Resources Recovery Authority.

      Joseph Rubin, assistant attorney general, with whom were Patricia Horgan, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Krista E. Trousdale, assistant attorney general, for the commissioner of environmental protection.
   Peters, C. J.

The dispositive issue in these four administrative appeals is whether this court has jurisdiction to review the judgments of a trial court that sustained the plaintiffs’ administrative appeals but ordered a remand for further administrative proceedings. Determination of that issue turns primarily on the date when the defendant Riley Energy Systems of Lisbon Corporation (RESOL) began administrative proceedings for permission to build a solid waste resources recovery facility in the town of Lisbon. If the administrative proceedings were initiated at a time when the governing statute was General Statutes § 4-183 (j), which makes any remand order a final judgment for appellate purposes, then we have plenary jurisdiction to consider the appeals on their merits. If these proceedings were begun prior to the effective date of the amendments to the Uniform Administrative Procedure Act; General Statutes § 4-166 et seq.; the existence of appellate jurisdiction depends upon the scope of the trial court’s remand orders. We conclude that we have no such jurisdiction and therefore that the appeals must be dismissed.

The record discloses the following procedural history. On December 8,1988, RESOL filed its initial three part application, pursuant to General Statutes § 22a-208a, for a solid waste permit for a Lisbon resources recovery facility. Its submission, addressed to the waste engineering and enforcement division of the department of environmental protection (department), contained application forms, technical support documents and facility drawings. In its cover letter, RESOL stated: “We trust that you will find this application complete in all respects and will review the documents expeditiously.” The following year, RESOL submitted a revised permit application that, on its cover sheet, was denominated a revision of its December, 1988 application. On October 2, 1990, RESOL filed an application for a determination of need pursuant to General Statutes (Rev. to 1991) § 22a-208d. In all, RESOL filed six applications with the department for the necessary permits to build a solid waste resources recovery facility in Lisbon.

The defendant commissioner of environmental protection (commissioner) issued a public notice, on May 19, 1991, seeking public comment on RE SOL’s applications for: (1) a determination of need for a municipal solid waste regional resources recovery facility, pursuant to § 22a-208d; (2) a permit to construct and operate such a facility, pursuant to § 22a-208a; (3) two permits to discharge waste waters in connection with such a facility, pursuant to General Statutes (Rev. to 1991) § 22a-430 and § 402 (b) of the federal Water Pollution Control Act, as amended; 33 U.S.C. § 1251 et seq.; (4) a permit to construct a potential air contaminant source, pursuant to General Statutes (Rev. to 1991) § 22a-174; and (5) a permit to divert waters in connection with such a facility, pursuant to General Statutes (Rev. to 1991) § 22a-368. Public hearings on all of RESOL’s applications were held beginning on June 19,1991, and continuing through December 15,1991.

“(b) The commissioner shall publish, at the expense of the applicant, notice of the preliminary determination of need for the proposed facility or disposal area in a newspaper having a substantial circulation in the area affected. . . . The commissioner shall not make a final determination of need for the facility or disposal area unless a permit is issued. A preliminary determination of need shall be void if a permit is not issued. As used in this section, ‘preliminary determination of need’ means a statement by the commissioner of the need for a resources recovery facility or disposal area during the pendency of an application to construct such facility or area.
“(c) (1) The applicant for a permit to construct or expand a resources recovery facility requiring a determination of need under subsection (a) shall provide such information as the commissioner deems necessary ....
“(d) (1) The applicant for a permit to construct a disposal area for ash residue generated by resources recovery facilities or mixed municipal solid wastes which requires a certificate of need under subsection (a) of this section shall submit such information as the commissioner deems necessary
“(2) In making the determination required under this subsection, the commissioner shall consider the information submitted pursuant to subdivision (1) of this subsection and any other information the commissioner deems pertinent.
“(e) The provisions of this section shall apply to any application for a permit under section 22a-208a for a resources recovery facility or for a disposal area for ash residue generated by resources recovery facilities or for a dis- ( posal area for mixed municipal solid wastes which is pending on or submitted after July 1, 1989. . . .”

While the permit applications were pending before the commissioner, the plaintiffs city of Norwich, Connecticut Resources Recovery Authority (CRRA) and Stuart’Greenfield petitioned, pursuant to General Statutes § 22a-19 (a), to intervene as parties in the administrative proceeding. Thereafter, the plaintiff Southeastern Connecticut Regional Resources Recovery Authority (SCRRRA) petitioned, pursuant to General Statutes § 4-177a and the rules of practice of the department, to intervene as a party in the administrative proceeding. The commissioner granted all the petitions to intervene.

On October 5,1992, after conducting a series of hearings on RESOL’s applications, the commissioner issued the “Final Decision” granting RESOL all the requested permits. In response to petitions for reconsideration filed by CRRA and SCRRRA, the commissioner held additional hearings and entertained oral argument. On February 10, 1993, the commissioner issued the “Amended Final Decision” granting the permits.

CRRA, SCRRRA, Greenfield, and the city of Norwich thereafter filed separate administrative appeals, pursuant to General Statutes § 4-183 (a), in which they challenged the propriety of the issuance of the permits. RESOL intervened as a defendant in each action because of its interest as permittee, and the town of Stonington intervened as a plaintiff in each action pursuant to § 22a-19 (a). The plaintiffs alleged that the commissioner should have denied the permits, because, inter alia, there was no “need” for a resources recovery facility as required by § 22a-208d (a), and because the construction of the facility would result in “unreasonable pollution, impairment or destruction” of natural resources in violation of General Statutes § 22a-15.

The trial court consolidated the four administrative appeals for hearing and rendered judgments invalidating the permits and remanding the cases to the commissioner. Although the trial court agreed with the plaintiffs’ procedural claims that they had standing to pursue their administrative appeals, the court rejected the plaintiffs’ stated claims on their merits. The court nevertheless sustained the plaintiffs’ appeals and invalidated the permits on a ground not raised by any of the parties. Condition 25 of the construction permit required RESOL to dispose of all solid waste from the Housatonic Resources Recovery Authority at the proposed Lisbon plant and directed that RESOL “shall only displace such waste by solid waste [that] it receives from other Connecticut towns.” The court held that this condition imposed unconstitutional barriers to the importation of out-of-state waste, in violation of the commerce clause of the United States constitution. Concluding that the commissioner’s decision to issue the construction permit was inextricably intertwined with the assumption that condition 25 could validly be imposed, the court ordered a remand in each case to enable the commissioner to reconsider the granting of the permit in light of the court’s holding. After further briefing and oral argument, the court adhered to its judgment, clarified the terms of its remand orders and denied motions to open its judgments filed by RESOL and by CRRA and SCRRRA.

CRRA, SCRRRA and Stonington appealed from the trial court judgments to the Appellate Court, alleging, inter alia, that the trial court had improperly upheld the commissioner’s determination that there was a “need” for an additional resources recovery facility. Norwich and Greenfield did not appeal. RESOL filed separate appeals from the judgments, challenging the trial court’s procedural and jurisdictional rulings, its failure to declare § 22a-208d unconstitutional, and its determination that condition 25 is unconstitutional and requires a remand. RESOL, CRRA and SCRRRA all filed cross appeals as well. We transferred the appeals to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

To determine whether, in each case, the trial court’s order of remand was a final judgment that would support an immediate appeal, we must resolve two issues. First, we must decide whether these administrative appeals are governed by § 4-183 (j), which, since its effective date of July 1,1989, characterizes any remand order in an administrative appeal as a final judgment. Second, if the appeals instead are governed by the preJuly 1,1989 provisions of the Uniform Administrative Procedure Act, we must determine whether the terms of the trial court’s judgments, including its remand orders, constitute a final judgment, for purposes of appeal, under the test for a final judgment established by State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983), and its progeny. We conclude that both questions should be answered in the negative and therefore conclude that the trial court did not render final judgments in these cases.

I

The legislature enacted far-reaching amendments to the Uniform Administrative Procedure Act in 1988. All of the provisions of that act, however, including its appeal provisions, apply only in cases where the underlying agency proceedings had commenced on or after July 1, 1989. Vernon Village, Inc. v. Carothers, 217 Conn. 130, 136-37, 585 A.2d 76 (1991). In that case, we concluded that, “in accordance with the [department] regulations, the agency proceedings had commenced on the date that the commissioner first took formal action against the respondents by issuing the pollution abatement orders.” Id., 141. We expressly refused to “view each fragmented subproceeding within an agency” as an independent triggering event for the applicability of the amended Uniform Administrative Procedure Act. Id.

The record in this case demonstrates that the agency proceedings commenced on December 8, 1988, when RESOL filed its first permit application with the department pursuant to § 22a-208a. Regulations of the department provided, then and now, that “[a]n administrative action of the department commences when (1) an application or petition is received by the department.” Regs., Conn. State Agencies § 22a-3a-l (a) (1) (B) (3), now § 22a-3a-2 (c) (1) (A). Throughout the hearings and adjudicative proceedings involving RESOL’s efforts to construct a solid waste resources recovery facility, proceedings conducted by the department have addressed all of RESOL’s permit applications jointly.

We are unpersuaded by RESOL’s contention that the relevant agency proceedings did not commence until it filed its application for a determination of “need” for such a facility pursuant to § 22a-208d (a). A determination of “need” has always been a requisite for the issuance of a construction permit under § 22a-208a. Until 1989, that requisite appeared in § 22a-208a itself. Since the enactment of § 22a-208d (a), the cross reference has appeared in the opening words of § 22a-208d (a), which instruct that “the commissioner of environmental protection shall not issue a permit under section 22a-208a” unless such a determination has been made. In § 22a-208d (e), furthermore, the legislature required the commissioner to apply the department’s regulatory provisions to any application for a permit for a resources recovery facility that was pending before July 1, 1989. In light of this statutory pattern, separation of the application for a determination of “need” from the application for the construction permit would be precisely the kind of fragmentation of agency sub-proceedings that we decried in Vernon Village, Inc. v. Carothers, supra, 217 Conn. 141.

Our conclusion that RE SOL’s permit applications predated the effective date of the amended Uniform Administrative Procedure Act means that an order of remand is not automatically a final judgment. Compare General Statutes (Rev. to 1989) § 4-183 (j). It is of no moment whether, as RESOL contends, the parties or the trial court mistakenly assumed that these administrative proceedings were governed by the amended Uniform Administrative Procedure Act. Appellate jurisdiction cannot be conferred either by agreement of the parties or by estoppel. “The right of appeal is purely statutory. It is accorded only if the conditions fixed by the statute and the rules of court for taking and prosecuting the appeal are met.” State v. Curcio, supra, 191 Conn. 30; see also Vernon Village, Inc. v. Carothers, supra, 217 Conn. 142; Charles Holdings, Ltd. v. Planning & Zoning Board of Appeals, 208 Conn. 476, 479, 544 A.2d 633 (1988); Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities, 201 Conn. 350, 356, 514 A.2d 749 (1986).

II

In light of our conclusion that these administrative proceedings are not governed by the amended Uniform Administrative Procedure Act, whether the trial court rendered judgments that are immediately appealable depends upon whether its remand orders satisfy the generic test for a final judgment articulated in State v. Curcio, supra, 191 Conn. 31. Under that test, an order of a trial court is immediately appealable only “(1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” Id. We conclude that the judgments are not immediately appealable.

Because these remand orders, which directed reconsideration of the agency’s determination of need, cannot be said, on any theory, to have “terminated” any part of the proceedings, the only issue of appealability is whether the rights of the parties have been so definitively resolved “that further proceedings cannot affect them.” In Schieffelin & Co. v. Dept. of Liquor Control, 202 Conn. 405, 521 A.2d 566 (1987) (Schieffelin), we held that this issue must be resolved by reference to the scope of the order of remand. “[W]e have distinguished . . . between two kinds of administrative remands. A trial court may conclude that an administrative ruling was in error and order further administrative proceedings on that very issue. In such circumstances, we have held the judicial order to be a final judgment, in order to avoid the possibility that further administrative proceedings would simply reinstate the administrative ruling, and thus would require a wasteful second administrative appeal to the Superior Court on that very issue. See, e.g., Watson v. Howard, 138 Conn. 464, 468, 86 A.2d 67 (1952); Santos v. Publix Theatres Corporation, 108 Conn. 159, 161, 142 A. 745 (1928). A trial court may alternatively conclude that an administrative ruling is in some fashion incomplete and therefore not ripe for final judicial adjudication. Without dictating the outcome of the further administrative proceedings, the [trial] court may insist on further administrative evidentiary findings as a precondition to final judicial resolution of all the issues between the parties. . . . Such an order is not a final judgment. See, e.g., Burdick v. United States Finishing Co., 128 Conn. 284, 288-89, 22 A.2d 629 (1941); Luliewicz v. Eastern Malleable Iron Co., 126 Conn. 522, 524, 12 A.2d 779 (1940).” Schieffelin, supra, 410.

Applying this distinction, we held, in Schieffelin, that the administrative record was incomplete and immediate appellate review of a judicial order of remand was, therefore, premature, because the remand order directed the agency to make an administrative ruling on cause to terminate the defendants’ liquor distributorships, an issue that was crucial to the parties' substantive claims for relief. Id., 410-11. We similarly held, in Lieberman v. State Board of Labor Relations, 216 Conn. 253, 272-73, 579 A.2d 505 (1990), that there could be no immediate appeal of a remand order that required the defendant board to exercise its independent judgment about remedial alternatives for an employee who had resigned his employment position in reliance on a settlement provision to which his public employer had no legal authority to agree. We came to the opposite conclusion in Kaufman v. Zoning Commission, 232 Conn. 122, 131, 653 A.2d 798 (1995), in which we found a final judgment despite the existence of a remand order. In that case, the trial court overturned the defendant commission’s denial of a zoning permit, ordered the permit to be granted and remanded the case “only for the limited purpose of allowing the commission to impose reasonable conditions on or make reasonable changes to the development [plan], if it so chose.” Id.

In the cases presently before us, the trial court described the reason for its remand orders in some detail. “The invalidity of condition 25 does not preclude the issuance of a permit for the Lisbon plant by [the department], but it does raise the question whether the permit would have been issued if the final decision maker had realized that condition 25 in its entirety was unenforceable and that the protection it afforded against incinerating out-of-state waste at the Lisbon plant was illusory. Would [the department] have accepted the [Housatonic Resources Recovery Authority] contracts as sufficient compliance with the requirement of General Statutes § 22a-208d (c) (1) (D) (i) for ‘contracts or letters of intent’ to evidence the quantity of waste the [Housatonic Resources Recovery Authority] towns would send to Lisbon if it were aware that the condition intended to insure delivery of such waste to Lisbon was not enforceable? Would [the department] have made the same determination of need if it had known that the requirement imposed for displacement of out-of-state waste by available Connecticut waste would be invalidated? These are fact-bound questions that can be resolved only by further agency proceedings.”

The trial court then defined the scope of the remand orders. “The purpose of the remand is (1) to determine whether [the department], as the fact-finding agency, would have issued the permit despite the infirmities in the [Housatonic Resources Recovery Authority] contracts, which condition 25 was intended to cure; and (2) to determine whether the prediction that a shortage of waste disposal capacity in this state, amounting to 400 [tons per day], will occur by 1998, which is the basis for the [department’s] finding of a need for the Lisbon plant, warrants issuance of the permit at this time, given the existence of alternatives and the invalidity of the restriction imposed by condition 25 on out-of-state waste. The critical question is whether [the department] would have issued the permit without the restrictions imposed by condition 25.

“For the purpose of the remand, the further proceedings should be limited to the present evidentiary record. Those issues definitively resolved by the original decision of this court should not be relitigated. If [the department] should decide to exercise its authority under [General Statutes] § 4-180a (b) to consider a reversal or modification of its final decision ‘on a showing of changed conditions,’ the proceedings for that purpose should be conducted separately from the remand proceedings.”

In our view, the remand orders in these cases seek amplification of “an administrative ruling [that] is in some [material] fashion incomplete and therefore not ripe for final judicial adjudication.” Schieffelin, supra, 202 Conn. 410. Even though the trial court ordered the commissioner to respond to its remand orders on the existing evidentiary record, the court described the commissioner’s reconsideration of RESOL’s permit, without condition 25, as raising “fact-bound questions that can be resolved only by further agency proceedings.” Unlike Kaufman v. Zoning Commission, supra, 232 Conn. 131, the trial court did not order that the permit be granted with whatever reasonable conditions the commissioner might append, but left it to the commissioner to determine whether any permit at all should be issued. We conclude, therefore, that the present appeals are not taken from final judgments.

The appeals are dismissed.

In this opinion the other justices concurred.

       Public Acts 1988, No. 88-317, § 23, substituted General Statutes § 4-183 (j) for former § 4-183 (g) and, in addition to other textual changes, added the following: “For purposes of this section, a remand is a final judgment.” Pursuant to § 107 of the Public Act, its effective date was July 1, 1989.

       At the time of the filing of RESOL’s application in 1988, General Statutes § 22a-208a provided in relevant part: “permit for construction, ALTERATION OR OPERATION OF SOLID WASTE FACILITY. WRITTEN DETERMINATION OF need, (a) The commissioner of environmental protection may issue, deny, modify, renew, suspend, revoke or transfer a permit, under such conditions as he may prescribe and upon submission of such information as he may require, for the construction, alteration and operation of solid waste facilities, in accordance with the provisions of this chapter and regulations adopted pursuant to this chapter. . . .
      “(b) No solid waste facility shall be built or established . . . until the plan, design and method of operation of such facility have been filed with the department and approved by the commissioner by the issuance of a permit to construct ....
      “(c) No solid waste facility for which a permit to construct is required shall be operated . . . unless such facility has been issued a permit to operate. The commissioner may issue such permit upon determination that the facility (1) will be operated in accordance with applicable laws or regulations, (2) has been constructed in accordance with a permit issued pursuant to subsection (b) of this section, and (3) has satisfactorily completed any performance tests required by the commissioner. . . .
      “(h) No permit for a solid waste facility shall be granted unless the commissioner has considered the compliance of the applicant . . . with all state and federal environmental laws. . . .
      “(i) Before issuing a permit for a resources recovery facility, the commissioner shall make a written determination that such facility is necessary to meet the solid waste disposal needs of the state and will not result in a substantial excess capacity of resources recovery facilities or disrupt the orderly transportation of or disposal of solid waste in the area affected by such facility. . . .”

       General Statutes (Rev. to 1991) § 22a-208d provided in relevant part: “written determination of need for resources recovery facility and ash residue disposal area (a) On and after July 1, 1989, the commissioner of environmental protection shall not issue a permit under section 22a-208a to construct or expand a resources recovery facility where any mixed municipal solid waste will be processed or a disposal area for ash residue generated by resources recovery facilities or mixed municipal solid waste unless said commissioner makes a written determination that such facility or disposal area is necessary to meet the solid waste disposal needs of the state and will not result in substantial excess capacity of resources recovery facilities or disposal areas.

       General Statutes (Rev. to 1991) § 22a-208a provided in relevant part: “permit for construction, alteration or operation of solid waste facility, (a) The commissioner of environmental protection may issue, deny, modify, renew, suspend, revoke or transfer a permit, under such conditions as he may prescribe and upon submission of such information as he may require, for the construction, alteration and operation of solid waste facilities, in accordance with the provisions of this chapter and regulations adopted pursuant to this chapter. . . .
      “(b) No solid waste facility shall be built or established . . . until the plan, design and method of operation of such facility have been filed with the department and approved by the commissioner by the issuance of a permit to construct, provided, nothing in this chapter or chapter 446e shall be construed to limit the right of any local governing body to regulate, through zoning, land usage for solid waste disposal. . . .
      “(c) No solid waste facility for which a permit to construct is required shall be operated on and after June 16,1985, except for performance testing approved by the commissioner, unless such facility has been issued a permit to operate. The commissioner may issue such permit upon determination that the facility (1) will be operated in accordance with applicable laws or regulations, (2) has been constructed in accordance with a permit issued pursuant to subsection (b) of this section, and (3) has satisfactorily completed any performance tests required by the commissioner. . . .
      “(h) No permit for a solid waste facility shall be granted unless the commissioner has considered the compliance of the applicant . . . with all state and federal environmental laws. . . .”
      Effective July 1, 1989, the requirement that the commissioner make a determination of need for a resources recovery facility was transferred from § 22a-208a (i) to § 22a-208d. Public Acts 1989, No. 89-386, §§ 3, 4.

       General Statutes (Rev. to 1991) § 22a-430 provided in relevant part: “(formerly sec. 25-54i). permit for new discharge, regulations, renewal, special category permits or approvals, limited delegation. general permits, (a) No person or municipality shall initiate, create, originate or maintain any discharge of water, substance or material into the waters of the state without a permit for such discharge issued by the commissioner. . . . Application for a permit shall be on a form prescribed by the commissioner, [and] shall include such information as the commissioner may require .... The commissioner shall not issue or renew a permit unless such issuance or renewal is consistent with the provisions of the federal Clean Water Act (33 USC 1251 et seq.). . . .”

       General Statutes (Rev. to 1991) § 22a-174 provided in relevant part: “(formerly sec. 19-508). powers of the commissioner, regulations, fees, exemptions, (a) The commissioner, in the manner provided in subdivision (1) of section 22a-6, shall have the power to formulate, adopt, amend and repeal regulations to control and prohibit air pollution throughout the state or in such areas of the state as are affected thereby, which regulations shall be consistent with the Federal Air Pollution Control Act and which qualify the state and its municipalities for available federal grants.
      “(c) The commissioner shall have the power, in accordance with regulations adopted by him, (1) to require that a person, before undertaking the construction, installation, enlargement or establishment of a new air contaminant source specified in the regulations adopted under subsection (a), submit to him plans, specifications and such information as he deems reasonably necessary relating to the construction, installation, enlargement, or establishment of such new air contaminant source; (2) to issue a permit approving such plans and specifications and permitting the construction, installation, enlargement or establishment of the new air contaminant source in accordance with such plans, or to issue an order requiring that such plans and specifications be modified as a condition to his approving them and issuing a permit allowing such construction, installation, enlargement or establishment in accordance therewith, or to issue an order rejecting such plans and specifications and prohibiting construction, installation, enlargement or establishment of a new air contaminant source in accordance with the plans and specifications submitted; (3) to require periodic inspection and maintenance of combustion equipment and other sources of air pollution; (4) to require any person to maintain such records relating to air pollution or to the operation of facilities designed to abate air pollution as he deems necessary to carry out the provisions of this chapter and section 14-164c; (5) to require that a person in control of an air contaminant source specified in the regulations adopted under subsection (a), obtain a permit to operate such source if the source (A) is subject to any regulations adopted by the commissioner concerning high risk hazardous air pollutants, (B) bums waste oil, (C) is allowed by the commissioner, pursuant to regulations adopted under subsection (a), to exceed emission limits for sulfur compounds, (D) is issued an order pursuant to section 22a-178 or (E) violates any provision of this chapter, or any regulation, order or permit adopted cr issued thereunder; (6) to require that a person in control of an air contaminant source who is not required to obtain a permit pursuant to this subsection register with him and provide such information as he deems necessary to maintain his inventory. . . .”

       General Statutes (Rev. to 1991) § 22a-368 provided in relevant part: “REGISTRATION OF EXISTING DIVERSIONS. PERMITS. TRANSFER. . . .
      “(b) Notwithstanding any other provision of the general statutes or any special act to the contrary, no person or municipality shall, after July 1, 1982, commence to divert water from the waters of the state without first obtaining a permit for such diversion from the commissioner . . . .”

       General Statutes § 22a-19 (a) provides: “In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law, the attorney general, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.”

       General Statutes § 4-177a provides in relevant part: “CONTESTED CASES. PARTY, INTERVENOR STATUS, (a) The presiding officer shall grant a person status as a party in a contested case if that officer finds that: (1) Such person has submitted a written petition to the agency and mailed copies to all parties, at least five days before the date of hearing; and (2) the petition states facts that demonstrate that the petitioner’s legal rights, duties or privileges shall be specifically affected by the agency’s decision in the contested case.
      “(b) The presiding officer may grant any person status as an intervenor in a contested case if that officer finds that: (1) Such person has submitted a written petition to the agency and mailed copies to all parties, at least five days before the date of hearing; and (2) the petition states facts that demonstrate that the petitioner’s participation is in the interests of justice and will not impair the orderly conduct of the proceedings.”

       See footnote 3.

       General Statutes § 22a-15 provides: “declaration OF POLICY. It is hereby found and declared that there is a public trust in the air, water and other natural resources of the state of Connecticut and that each person is entitled to the protection, preservation and enhancement of the same. It is further found and declared that it is in the public interest to provide all persons with an adequate remedy to protect the air, water and other natural resources from unreasonable pollution, impairment or destruction.”

       RESOL’s appeals have been reclassified as cross appeals from three of the trial court judgments. RESOL’s appeal from the fourth judgment remains classified as an appeal.


author: Callahan, J.

text:
    State of Connecticut v. Kenneth Lemoine, Jr.
    (14957)
    Peters, C. J., and Callahan, Berdon, Norcott and Katz, Js.

      Argued March 15
    decision released June 13, 1995

      Marjorie Allen Dauster, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, Maxine Wilesky, assistant state’s attorney, and Trisha Morris, law student intern, for the appellant (state).

      Paul T. Edwards, special public defender, for the appellee (defendant).
   Callahan, J.

The dispositive issue in this certified appeal is whether the trial court, in its jury instructions in a criminal trial, has a constitutional obligation to refer to the evidence relating to the crimes charged in the information. The defendant, Kenneth Lemoine, appealed to the Appellate Court from judgments of conviction, rendered after a jury trial, of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (B), risk of injury to a child in violation of General Statutes § 53-21, and two counts of assault of a peace officer in violation of General Statutes (Rev. to 1991) § 53a-167c (a) (l). The Appellate Court reversed the defendant’s convictions and ordered a new trial. State v. Lemoine, 33 Conn. App. 743, 754, 641 A.2d 131 (1994). The Appellate Court determined that the trial court’s jury instructions had been constitutionally deficient because the court had failed sufficiently to relate the evidence elicited at trial to the various charges contained in the information, thereby denying the defendant his right to due process of law as guaranteed by the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. Id., 749-54. We granted the state’s petition for certification to appeal. State v. Lemoine, 230 Conn. 909, 644 A.2d 920 (1994). We reverse the judgment of the Appellate Court.

By way of background, the Appellate Court determined that the jury reasonably could have found the following facts. “On June 20, 1991, the victim, his mother, the defendant, Barbara Tirado and her daughter went to a lake. The victim was eight years old at the time. After staying at the lake, they drove to the home of the defendant’s mother, then to the home of his sister and then to Tirado’s home located on Maple Street in Meriden. The victim’s father later joined the group and the adults all began drinking. The victim fell asleep on the couch in Tirado’s home wearing his pants, shirt and underpants. The victim’s father was asleep on a chair near the couch and the victim’s mother was asleep in another room. The victim awoke to find the defendant placing his hands between the victim’s legs on the outside of the victim’s pants. The defendant was attempting to pull down the victim’s pants. The defendant was behind the victim on the couch and the victim was facing away from the defendant. The defendant told him to be quiet. The victim took off his pants while the defendant continued to touch the outside of the underpants between the legs and then the defendant cut the victim’s underpants. The victim was scared and ran to his mother’s room and told her what had just occurred.

“The victim’s mother ran into the living room to wake the victim’s father. In the meantime, the defendant, who was wearing only a tee shirt, ran down the stairs and out the backdoor. Tirado caught the defendant outside and asked him ‘why he did it’ and the defendant responded that he was sorry and the drugs made him do it. Tirado brought the defendant back upstairs. The victim’s father and the defendant then fought while the victim’s mother took off the victim’s underpants and dressed him. The victim then went downstairs with his parents and got into a van. The victim’s father began to drive on Main Street in Meriden to the police station when he observed the defendant driving a truck with Tirado as a passenger on Maple Street. The victim’s father blocked the defendant’s vehicle and the two vehicles collided. The victim and his mother exited the van and proceeded to the side of the road.

“Officers Michael Merrigan, Mark Masse and Grant Treiber of the Meriden police department arrived at the scene in uniform shortly thereafter. Merrigan approached the father and was informed by him about the events that occurred at Tirado’s home. Masse and Treiber approached the defendant’s vehicle and asked him to exit it. As they attempted to open the door of the defendant’s vehicle and take the keys, the defendant hit Treiber in the face and drove the vehicle in reverse. The officers at that point were hanging onto the doors of the vehicle. The truck veered to the right and almost hit a building on Maple Street. Treiber fell off the side of the truck and Masse hit a door attached to the building with sufficient force to break a hole in the door. Masse sustained lacerations to his right hand, right forearm, shoulder and back. Treiber sustained bruises and injured his right hand. Treiber then placed the defendant under arrest.

“At the crime scene, Robert Pocobello, a Meriden police detective, seized a pair of scissors and underpants. He discovered the scissors on a coffee table near the couch and the underpants on the couch. Pocobello processed the scissors for fingerprints. The processing revealed the presence of fingerprints that were not clear enough to be identified.

“Ted Standish, another Meriden police detective, employed by the department’s sexual assault unit, interviewed the victim on June 21, 1991. The victim stated that after arriving at Tirado’s home, she told him to sleep on the couch, where the defendant was already sleeping. The victim further told Standish that he awoke when the defendant placed his hands on the victim’s ‘dinky’ and that the defendant pulled at the victim’s pants. The victim also told Standish that the defendant told the victim to take off his pants and keep quiet. The victim then told Standish that the defendant tried to make him take off his underpants and when he refused, the defendant cut the underpants with scissors.

“The defendant disputed the facts. He testified on his own behalf that he, the victim, Tirado and the victim’s mother arrived at Tirado’s home after they had spent the day at the lake. The defendant also testified that he left Tirado’s at 11 p.m., just after the victim’s father arrived, returned at around 4:30 or 5 a.m., and found Tirado and the victim’s father drinking and the victim asleep on the couch. The defendant also stated that he fell asleep on the couch, ‘opposite the victim’ and awoke to find the victim’s father with his hand in the pocket of the defendant’s pants, which the defendant had on, and thought that the victim’s father was attempting to steal money. The defendant then testified that he tried to get up and that the victim’s father jumped on him and hit him in the face. The defendant then testified that Tirado offered to drive him to the hospital and that he accepted Tirado’s offer. He further testified that as Tirado drove him to the hospital, the victim’s father forced their vehicle to a stop on Maple Street. The defendant then testified that he moved into the driver’s seat, placed the truck in reverse and police officers tried to grab him, causing the truck to move in reverse.” State v. Lemoine, supra, 33 Conn. App. 744-47.

After considering the defendant’s claim that the trial court had failed to make sufficient reference to the evidence in its jury instructions, the Appellate Court concluded that “a complete lack of facts in the jury charge creates a reasonable possibility, as a matter of law, that the jury was misled.” Id., 753-54. On appeal to this court, the state claims that the Appellate Court incorrectly concluded that reference to the evidence in the trial court’s jury charge was constitutionally mandated. The state argues that the Appellate Court’s decision improperly created a per se rule that a jury charge given without a detailed reference to the evidence constitutes, as a matter of law, a constitutional due process violation and reversible error. See id.

“In reviewing a constitutional challenge to the trial court’s instructions, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury. State v. Avila, 223 Conn. 595, 607, 613 A.2d 731 (1992); State v. Santangelo, [205 Conn. 578, 595 n.11, 534 A.2d 1175 (1987)]; State v. Ruiz, 171 Conn. 264, 273, 368 A.2d 222 (1976). The test is whether the charge as a whole presents the case to the jury so that no injustice will result. . . . State v. Utz, 201 Conn. 190, 196-97, 513 A.2d 1191 (1986).” (Internal quotation marks omitted.) State v. Campbell, 225 Conn. 650, 661, 626 A.2d 287 (1993). We will reverse a conviction only if, “ ‘in the context of the whole, there is a reasonable possibility that the jury was misled in reaching its verdict.’ ” State v. Scognamiglio, 202 Conn. 18, 28, 519 A.2d 607 (1987); State v. Shannon, 212 Conn. 387, 408, 563 A.2d 646, cert. denied, 493 U.S. 980, 110 S. Ct. 510, 107 L. Ed. 2d 512 (1989); State v. Fleming, 198 Conn. 255, 268-69, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986).

“A jury instruction is constitutionally adequate if it provides the jurors with a clear understanding of the elements of the crime charged, and affords them proper guidance for their determination of whether those elements were present. . . . State v. Usry, 205 Conn. 298, 316, 533 A.2d 212 (1987); Slate v. Sinclair, 197 Conn. 574, 581, 500 A.2d 539 (1985); 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). An instruction that fails to satisfy these requirements would violate the defendant’s right to due process of law as guaranteed by the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. State v. Anderson, 212 Conn. 31, 36, 561 A.2d 897 (1989); State v. Foster, 202 Conn. 520, 537, 522 A.2d 277 (1987); State v. Fleming, [supra, 198 Conn. 269-70].” (Internal quotation marks omitted.) State v. Avila, supra, 223 Conn. 602-603.

“The test of a charge is whether it is correct in law, adapted to the issues and sufficient for the guidance of the jury. Berniere v. Kripps, 157 Conn. 356, 358, 254 A.2d 496 (1969); State v. Bell, 153 Conn. 540, 219 A.2d 218 (1966) .... The primary purpose of the charge is to assist the jury in applying the law correctly to the facts which they might find to be established. Vita v. McLaughlin, 158 Conn. 75, 77, 225 A.2d 848 (1969); Worden v. Francis, 153 Conn. 578, 579, 219 A.2d 442 (1966).” (Citation omitted.) State v. Sumner, 178 Conn. 163, 170, 422 A.2d 299 (1979). “ ‘The purpose of a charge is to call the attention of the members of the jury, unfamiliar with legal distinctions, to whatever is necessary and proper to guide them to a right decision in a particular case.’ ” Shea v. Tousig-nant, 172 Conn. 54, 59-60, 372 A.2d 151 (1976).

It has long been established that “[i]n properly instructing the jury it may or may not be necessary for the court to recall the attention of the jury to the evidence and to the facts which the State and the accused respectively claim to have established, or to comment upon the evidence or express an opinion as to its weight, or as to what verdict would be proper if the jury should find certain facts to have been proved. The charge should be so framed that the jury may clearly understand the matters which are submitted to them. . . . It is within the province, and may be within the duty, of the trial judge to not only call attention to the evidence adduced, but to state to the jury in the charge ‘his own opinion of the nature, bearing and force of such evidence.’ ... It is not necessarily error to omit all comment upon the bearing and weight of evidence; and generally the extent to which the court should discuss the evidence in submitting a case to the jury is, so long as in criminal cases the jury [is] not directed ‘how to find [its] verdict,’ within the discretion of the trial judge.” (Citations omitted; emphasis added.) State v. Long, 72 Conn. 39, 43, 43 A. 493 (1899).

In reviewing whether the trial court must comment on any evidence that has been presented, we examine not only the entire jury charge, but also the presentation of the issues to the jury by counsel in the context of the trial. “Within constitutional limitations concerning trial by jury, the nature and extent of the trial court’s comments on the evidence must largely depend on the facts involved in a particular case and the manner in which it has been tried. Anderson & McPadden, Inc. v. Tunucci, [167 Conn. 584, 590, 356 A.2d 873 (1975)]; Quednau v. Langrish, 144 Conn. 706, 710, 137 A.2d 544 (1957). . . . The wide discretion a trial court has in its comments on the evidence may not require it to discuss particular items of testimony, particularly where issues were clearly delineated during the trial, where the arguments of counsel fairly presented the case and where there was no request to charge. Gosselin v. Perry, [166 Conn. 152, 165, 348 A.2d 623 (1974)]; Quednau v. Langrish, supra, 710.” (Emphasis added.) Bruneau v. Quick, 187 Conn. 617, 628-29, 447 A.2d 742 (1982). In a case where the trial court’s charge “contained no review of the evidence,” we stated that “[t]he issues were narrow, and the court made sufficient reference to them and to the claims of the parties adequately to guide the jury in the application of the principles of law to the facts involved.” Corrievau v. Associated Realty Corp., 122 Conn. 253, 256-57, 188 A. 436 (1936); Crane v. Hartford-Connecticut Trust Co., 111 Conn. 313, 316, 149 A. 782 (1930); Morosini v. Davis, 110 Conn. 358, 363-64, 148 A. 371 (1930); see also W. Maltbie, Connecticut Appellate Procedure (1957) § 88.

In the present case, the Appellate Court determined, contrary to the long established rule that comment on the evidence should be left to the discretion of the trial court, that the trial court has a constitutional obligation to comment on the evidence in its jury charge in a criminal trial, regardless of the complexity of the issues involved. We conclude, however, that review of or comment on the evidence is not constitutionally mandated where the trial court, in the exercise of its sound discretion, determines that such commentary is not necessary and that the jury would be properly instructed and not misled in its absence.

The defendant was charged in an information with nine counts. He was charged with sexual assault in the third degree in violation of § 53a-72a (a) (1) (A), sexual assault in the third degree in violation of § 53a-72a (a) (1) (B) and risk of injury to a child in violation of § 53-21, all of which charges related to the minor victim. He also was charged with two counts of assault of a peace officer in violation of § 53a-167c (a) (l), and two counts of criminal attempt to commit assault in the first degree in violation of General Statutes §§ 53a-59 (a) (1) and 53a-49 (a) (2), which counts related to the two police officers, and two counts of reckless endangerment in the first degree in violation of General Statutes § 53a-63, one of which related to the minor victim’s father and the other to Tirado.

After the close of evidence and immediately after the final arguments of counsel, the trial court instructed the jury as to the law applicable to all of the charges against the defendant. The court first instructed the jury on the general principles of law applicable to the case, such as reasonable doubt, direct evidence, circumstantial evidence and other principles typically contained in all criminal jury instructions. The court then instructed the jury accurately as to the elements the state must prove as to each crime charged in the information in order to convict the defendant.

Contrary to the arguments of the defendant and the decision of the Appellate Court; State v. Lemoine, supra, 33 Conn. App. 753; we conclude that, in its charge to the jury, the trial court, under the circumstances, was not constitutionally obligated to recite the evidence and relate it to the various charges against the defendant. We are not persuaded that it was reasonably possible that the jury was misled by its failure to do so. The court did emphasize in its instructions to which victims the various charges against the defendant applied. Moreover, the information, which the jury had with it during its deliberations, clearly stated to which victim each of the nine counts pertained.

Furthermore, it is clear from the record that the various counts pertained to three different episodes and it is impossible that the jury could have intermingled or confused the evidence concerning them. In short, the matching of the various counts to the victims and the accurate recitation by the court of the elements of the several crimes charged was, under the circumstances, a sufficient allusion to the evidence to furnish the jury with a practical guide as to how to apply the law. See State v. Storlazzi, 191 Conn. 453, 467, 464 A.2d 829 (1983); Shea v. Tousignant, supra, 172 Conn. 60.

In arriving at its decision, the Appellate Court determined that “[bjecause the trial court’s charge was devoid of any reference to the facts of the case, except a passing reference to the names of the victims in four counts, we need not determine whether the issues in the case are complicated.” State v. Lemoine, supra, 33 Conn. App. 753. In assessing whether a jury reasonably could have been misled by the court’s instructions, however, it is always proper to consider whether the issues in the case are complicated. “The primary purpose of the charge is to assist the jury in applying the law correctly to the facts which they might find to be established. Vita v. McLaughlin, [supra, 158 Conn. 77]; Worden v. Francis, [supra, 153 Conn. 579-80]. The extent to which a court should comment on the evidence is largely a matter within its sound discretion. Worden v. Francis, supra, 580; Morosini v. Davis, [supra, 110 Conn. 363]. In some cases, where the issues are complicated, peculiar, or capable of differing conclusions, comment by the court is necessary. On the other hand, if the issues are clearly enumerated and the argument of counsel has fairly presented the case, a discussion in the charge of the details of the evidence may defeat its proper purpose. Corrievan v. Associated Realty Corporation, [supra, 122 Conn. 256]; Heslin v. Malone, 116 Conn. 471, 478, 165 A. 594 [1933].” Tough v. Ives, 162 Conn. 274, 287, 294 A.2d 67 (1972).

In the present appeal, although the defendant was charged with nine separate counts in the information, the evidence related to those charges was not complicated and the charges arose from three separate and distinct incidents. The first three counts against the defendant all related to the minor victim and concerned the incident involving sexual conduct at Tirado’s apartment. The two counts of reckless endangerment arose from the collision of the defendant’s truck with the victim’s father’s van at the corner of Maple Street and Main Street in Meriden. The assault counts involved only the police officers. The three incidents were not similar. Moreover, the final arguments of counsel, delivered immediately prior to the court’s instructions, thoroughly reviewed the testimony elicited from the witnesses. Final arguments further focused on the credibility of the witnesses’ factual accounts of the events that had occurred, not on whether the elements of the crimes charged were present if the state’s witnesses were believed. The trial court, in the exercise of its judgment under the circumstances, might well have determined that review of or comment on the evidence was unnecessary and even might have been harmful. We cannot say that the trial court was wrong.

We conclude that the court’s jury instructions, when examined as a whole and in the context of the entire trial, achieved their purpose of assisting the jury in applying the law. See State v. Sumner, supra, 178 Conn. 170-71. We conclude that, under the circumstances, the trial court did not abuse its discretion, when instructing the jury, in keeping its mention of the evidence to a minimum. We also conclude that it was not reasonably possible that the jury was misled by the trial court’s instructions and that no injustice to the defendant resulted by reason of the court’s instructions. See Amato v. Sawicki, 159 Conn. 490, 494, 271 A.2d 80 (1970). There was, therefore, no due process violation under either the state or the federal constitution.

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

In this opinion the other justices concurred.

       General Statutes § 53a-72a provides in relevant part: “sexual assault in THE THIRD DEGREE: class D felony, (a) A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact . . . (B) by the threat of use of force against such other person or against a third person, which reasonably causes such other person to fear physical injury to himself or herself or a third person . . . .”

       General Statutes § 53-21 provides: “injury or risk op injury to, or impairing morals of, children. Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both."

       General Statutes (Rev. to 1991) § 53a-167e provides in relevant part: “assault of a peace officer, fireman, employee of an emergency medical service organization or department of correction employee: class c felony, (a) A person is guilty of assault of a peace officer, fireman, employee of an emergency medical service organization or employee of the department of correction when, with intent to prevent a reasonably identifiable peace officer, fireman or employee of an emergency medical service organization, as defined in section 53a-3, or employee of the department of correction from performing his duty, and while such peace officer, fireman or employee is acting in the performance of his duties, (1) he causes physical injury to such peace officer, fireman or employee 11

       On appeal to the Appellate Court, the defendant claimed that the trial court improperly “(1) denied his motions for a directed verdict and judgment of acquittal on the count of sexual assault in the third degree, (2) instructed the jury by failing to relate the issues of law to the facts of the case, and (3) instructed the jury on the crime of risk of injury to a child.” State v. Lemoine, supra, 33 Conn. App. 744. Because the Appellate Court agreed with the defendant’s second claim, it did not reach the defendant’s first and third claims.

       We granted certification to appeal limited to the following issues: “(1) Did the Appellate Court properly conclude that the trial court had a constitutional obligation to refer to the facts relating to each charge of its jury instructions?” and “(2) Did the Appellate Court correctly order a new trial because the trial court did not relate the facts to each crime charged?” State v. Lemoine, supra, 230 Conn. 909.

       “The victim testified that his underwear was left in Tirado’s bedroom. The victim’s mother testified that she did not remember where the underwear was left.” State v. Lemoine, supra, 33 Conn. App. 745 n.5.

       “Standish testified that the victim pointed to his penis when he used the word ‘dinky.’ ” State v. Lemoine, supra, 33 Conn. App. 747 n.6.

       The defendant failed to file a request to charge in the trial court and no exception was taken to the trial court’s instructions. The Appellate Court reviewed this claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). See State v. Lemoine, supra, 33 Conn. App. 748A-48B.

       General Statutes § 53a-72a (a) provides in relevant part: “A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact (A) by the use of force against such other person or a third person . . . .”

       See footnote 1.

       See footnote 2.

       See footnote 3.

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”
      General Statutes § 53a-49 (a) provides in relevant part: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       General Statutes § 53a-63 (a) provides: “A person is guilty of reckless endangerment in the first degree when, with extreme indifference to human life, he recklessly engages in conduct which creates a risk of serious physical injury to another person.”

       The defendant, in fact, was acquitted of the charges involving criminal attempt to commit assault in the first degree and reckless endangerment in the first degree, as well as the first count charging the defendant with sexual assault in the third degree in violation of § 53a-72a (a) (1) (A).

       The court cited Amato v. Sawicki, 159 Conn. 490, 494, 271 A.2d 80 (1970), for this proposition. In Amato we stated that the “issues were not complicated, and the recital of the essential facts and the instructions on each of the applicable specifications of negligence were adequate.” Id. The Appellate Court seems to have construed the language in Amato so broadly as to conclude that in every ease, no matter how uncomplicated, an instruction relating the evidence to the law is always necessary no matter how obvious the relationship. Our conclusion in that case, however, did not so hold, but was derived from the proper test, which states that “|t]he portions of the charge under attack were adapted to the issues, correct in law and sufficient for the guidance of the jury.” Id.
      Similarly, in State v. Lee, 32 Conn. App. 84, 104, 628 A.2d 1318, cert. denied, 227 Conn. 924, 632 A.2d 702 (1993), cert. denied, 510 U.S. 1202, 114 S. Ct. 1319, 127 L. Ed. 2d 668 (1994), the Appellate Court stated: “The trial court has not only the right but also the duty to comment on the evidence.” That statement is only true, however, when, in its discretion, the trial court determines that the issues are “complicated, peculiar, or capable of differing conclusions . . . .” Tough v. Ives, 162 Conn. 274, 287, 294 A.2d 67 (1972).