text:
    Blue Sky Bar, Inc., et al. v. Town of Stratford et al.
    (12837)
    Peters, C. J., Healey, Shea, Callahan and F. Freedman, Js.
    Argued December 9, 1986
    decision released March 31, 1987

      Lawrence J. Merly, with whom was Nicholas E. Wocl, for the appellants (plaintiffs).

      Carl E. Watt, assistant town attorney, for the appellees (defendants).
   Arthur H. Healey, J.

This is an appeal from the Appellate Court’s decision upholding the trial court’s refusal to declare invalid and enjoin the enforcement of an ordinance enacted by the named defendant, the town of Stratford, which prohibits vending from any type of motor vehicle upon the streets or public property within the town limits.

The stipulated facts include the following: The named plaintiff, Blue Sky Bar, Inc. (Blue Sky Bar), is a Connecticut corporation engaged in the business of vending ice cream and related food products from specially designed mobile vending trucks. Its business is principally concentrated in southwestern Connecticut. Vending is conducted during a season which runs approximately from March 18 to October 18 of each year. Most of the sales take place in residential neighborhoods with the balance taking place at recreation areas, playgrounds and beaches. The ice cream and related products which the plaintiffs sell are purchased from suppliers in at least seven states.

In May, 1983, the plaintiffs, Michael A. McDougall and Brian Tomasko, drivers of Blue Sky Bar trucks, individually applied for and were issued permits by the defendant town of Stratford to vend ice cream from a mobile vehicle during the 1983 vending season. McDougall and Tomasko also obtained health permits to vend food in Stratford.

On May 23, 1983, the defendant town passed an ordinance, effective upon passage, which provides in relevant part: “It shall be unlawful for any person to vend or peddle upon the public streets, public property, and town property of the town of Stratford from any type of motor vehicle any commodity whatsoever.” The stated purpose of the ordinance is to reflect the citizens’ concerns regarding public safety. On May 25,1983, the plaintiffs brought an action against the town and its chief of police seeking (1) a temporary and permanent injunction restraining the defendants from enforcing the ordinance, and (2) a declaratory judgment declaring the ordinance “illegal, void, unconstitutional and unenforceable.” On June 2,1983, the trial court issued a temporary order restraining enforcement of the ordinance pending a full hearing on the merits. The case was heard on November 17, 1983, and, on December 15, 1983, the court rendered judgment for the defendants. The court held that the defendant town had statutory authority, pursuant to General Statutes § 7-148 (c) (7) (H) (iv), to enact the ordinance, that the ordinance was a reasonable exercise of the defendants’ police power, and that the ordinance was constitutionally permissible. The plaintiffs’ request to make the temporary restraining order permanent was denied. On appeal, the Appellate Court agreed with the trial court and held accordingly. Blue Sky Bar, Inc. v. Stratford, 4 Conn. App. 261, 493 A.2d 908 (1985).

Upon the granting of their petition for certification, the plaintiffs have appealed to this court claiming that the Appellate Court erred in concluding that: (1) the defendant town had statutory authority to enact the ordinance; (2) the ordinance is a reasonable exercise of police power; and (3) the ordinance is constitutionally permissible. The plaintiffs also claim that the Appellate Court erred in not reviewing the issue of whether General Statutes § 7-148 (c) (7) (H) (iv) unconstitutionally prohibits the operation of a legitimate business. We disagree.

I

We consider first the plaintiffs’ claim that the defendants lacked statutory authority to prohibit vending from any type of motor vehicle. The plaintiffs and the defendants agree that the resolution of this issue necessarily hinges upon the relationship between General Statutes §§ 21-37 and 7-148 (c) (7) (H) (iv). Section 21-37, which was enacted in 1909, provides in part that “[a]ny town may make reasonable ordinances with reference to the vending or hawking upon its public streets of any goods, wares or other merchandise at public or private sale or auction, or to the vending or peddling of such articles from house to house within its limits . . . . ” Section 7-148 (c) (7) (H) (iv), which is part of the Home Rule Act and was adopted in 1982, states that any municipality has the power to “[p]rohibit, restrain, license and regulate the business of peddlers, auctioneers and junk dealers in a manner not inconsistent with the general statutes.”

The plaintiffs maintain that the ordinance is invalid because it is inconsistent with § 21-37, which permits only the enactment of “reasonable ordinances” with reference to vending, rather than the “prohibition” of vending. The plaintiffs acknowledge that § 7-148 (c) (7) (H) (iv) uses the term “prohibit” but point out that that section also states that a municipality must enact ordinances “in a manner not inconsistent with the general statutes.” This provision, they argue, must be read in conjunction with § 21-37. They maintain that “obviously, the legislature intended § 7-148 (c) (7) (H) (iv) to be limited by § 21-37.” The plaintiffs also claim that § 7-148 (c) (7) (H) (iv), when read together with § 21-37, only permits a municipality “to prohibit a legitimate business if that business does not follow the licensure requirements or reasonable regulations imposed upon it.” The defendants, on the other hand, argue that the two statutes are not inconsistent; that is, § 7-148 (c) (7) (H) (iv) merely “elaborates” on the type of action a municipality may choose when enacting a “reasonable ordinance.”

The Appellate Court agreed with the defendants’ argument and viewed “§ 7-148 (c) (7) (H) (iv) as an elaboration of the types of action a municipality may choose when enacting a reasonable ordinance in the exercise of its police powers under § 21-37.” Blue Sky Bar, Inc. v. Stratford, supra, 264. This construction, the Appellate Court determined, “[gave] both statutes efficacy.” Id. The court concluded, therefore, that the defendants possessed the statutory authority to prohibit vending from motor vehicles. While we agree with the conclusion reached by the Appellate Court that the defendant town had statutory authority to enact the ordinance, we do so for different reasons. We need not decide the issue of whether § 7-148 (c) (7) (H) (iv) authorizes a municipality to prohibit outright any and all vending on public streets and property because the ordinance at issue in this case is not a prohibition of vending, but is simply a permissible regulation of the method by which commodities may be merchandised.

It is well settled law that as a creation of the state, a municipality has no inherent powers of its own; New Haven Commission on Equal Opportunities v. Yale University, 183 Conn. 495, 499, 439 A.2d 404 (1981); and that a municipality possesses only such rights and powers that have been granted expressly to it by the state or that are necessary to discharge its duties and to carry out its objectives and purposes. Id., citing City Council v. Hall, 180 Conn. 243, 248, 429 A.2d 481 (1980); see also Simmons v. Canty, 195 Conn. 524, 529, 488 A.2d 1267 (1985); Buonocore v. Branford, 192 Conn. 399, 401-402, 471 A.2d 961 (1984). Under both §§ 21-37 and 7-148 (c) (7) (H) (iv), the state has granted to municipalities the power to regulate vending on public streets and public property. The issue then is whether the ordinance enacted by the defendant town is a regulation or a prohibition of vending because if the ordinance acts to regulate rather than prohibit outright, we need not discuss the issue addressed by the Appellate Court concerning the relationship between §§ 21-37 and 7-148 (c) (7) (H) (iv).

The word “regulate” has been defined as “ ‘to prescribe the rule by which commerce is to be governed.’ ” United States v. Darby, 312 U.S. 100, 113, 61 S. Ct. 451, 85 L. Ed. 609 (1941). “The power to regulate, however, entails a certain degree of prohibition. 2 McQuillin, Municipal Corporations (3d Ed.) § 10.26. The word ‘regulate’ implies, when used in legislation, the bringing under the control of constituted authorities the subject to be regulated. Webster, New International Dictionary (2d Ed.). It infers limitations.” Hartland v. Jensen’s, Inc., 146 Conn. 697, 702, 155 A.2d 754 (1959); see Greenwich v. Connecticut Transportation Authority, 166 Conn. 337, 342, 348 A.2d 596 (1974). We have recognized that it “requires no citation of authority to say that regulation may in many instances result in prohibition. The question is whether the result is reached in a reasonable manner and is necessary for the public welfare.” Shorehaven Golf Club, Inc. v. Water Resources Commission, 146 Conn. 619, 625, 153 A.2d 444 (1959). It is fair to say that the power to regulate, however, does not necessarily imply the power to prohibit absolutely any business or trade, as the very essence of regulation, which infers limitations, is the continued existence of that which is regulated. Prohibition of an incident to or particular method of carrying on a business is not prohibition, but rather it is merely “regulation.” Steffey v. Casper, 357 P.2d 456, 461 (Wyo. 1960); see also Breard v. Alexandria, 341 U.S. 622, 631, 71 S. Ct. 920, 95 L. Ed. 1233, reh. denied, 342 U.S. 843, 72 S. Ct. 71, 96 L. Ed. 637 (1950) (“[a]ll regulatory legislation is [in a sense] prohibitory”); Fenton Gravel Co. v. Fenton, 371 Mich. 358, 361-62, 123 N.W.2d 763 (1963) (ordinance which prohibited large vehicles from using certain streets but established other routes through village at a greater distance from the plaintiffs’ business constituted a “regulation” and was not objectionable as a “prohibition”).

We conclude that the ordinance at issue in this case is regulatory. The ordinance merely proscribes vending from motor vehicles; it does not preclude all vending. The plaintiffs, therefore, are not absolutely forbidden from vending their products; rather, the effect of the ordinance is to regulate the method by which the plaintiffs may vend their products. While it is true that this ordinance limits the plaintiffs in the manner of merchandising their products, there is nothing in the ordinance that forbids the plaintiffs from selling their products via bicycle, pushcart or other nonmotor vehicle. Cf. Delight Wholesale Co. v. Overland Park, 203 Kan. 99, 453 P.2d 82 (1969). There is no question that both §§ 21-37 and 7-148 (c) (7) (H) (iv) permit regulation of “vending or hawking on public streets.” The Appellate Court, therefore, was correct in its conclusion that the defendant town had statutory authority to enact the ordinance.

II

We next address the plaintiffs’ claim that the Appellate Court erred in concluding that the ordinance was a reasonable exercise of police power. The plaintiffs argue that the ordinance is unreasonable and thus invalid because it does not rationally relate to the defendants’ alleged purpose for the ordinance. The plaintiffs contend that the defendants could have realized their desired objectives in a less burdensome manner and point out that the record is “wholly devoid of any real and substantial purpose or need for enacting the ordinance.” The defendants argue that the ordinance is a reasonable exercise of police power, has a legitimate purpose, and is rationally related to both the safety of the children of Stratford and its free flow of traffic.

The challenged ordinance is an exercise of the police power conferred upon the town by statute. There is no doubt that the town has a right to regulate a business, pursuant to its police power, in the interest of protecting the public safety or the welfare of its inhabitants. Caldor’s, Inc. v. Bedding Barn, Inc., 177 Conn. 304, 317, 417 A.2d 343 (1979); C & H Enterprises, Inc. v. Commissioner of Motor Vehicles, 167 Conn. 304, 307, 355 A.2d 247 (1974); see also General Statutes § 7-148 (c) (7) (H). Any such regulation, however, must be reasonably calculated to achieve that purpose; it must have a rational relationship to its objective. Caldor’s, Inc. v. Bedding Barn, Inc., supra; see also Helbig v. Zoning Commission, 185 Conn. 294, 304, 440 A.2d 940 (1981); State v. Gordon, 143 Conn. 698, 703, 125 A.2d 477 (1956). “The State may regulate any business or the use of any property in the interest of the public welfare or the public convenience, provided it is done reasonably. Connecticut Light & Power Co. v. Southbury, 95 Conn. 242, 111 Atl. 363 [1920].” State v. Bassett, 100 Conn. 430, 432, 123 A. 842 (1924). “The limit of the exercise of the police power is necessarily flexible, because it has to be considered in the light of the times and the prevailing conditions. State v. Hillman, 110 Conn. 92, 105, 147 A. 294 [1929].” State v. Gordon, supra. “Whether the times and conditions require legislative regulation, as well as the degree of that regulation, is exclusively a matter for the judgment of the legislative body .... Courts can interfere only in those extreme cases where the action taken is unreasonable, discriminatory or arbitrary. Carroll v. Schwartz, 127 Conn. 126, 130, 14 A.2d 754 [1940]; State v. Miller, 126 Conn. 373, 377, 12 A.2d 192 [1940].” State v. Gordon, supra; see also Connecticut Theatrical Corporation v. New Britain, 147 Conn. 546, 553, 163 A.2d 548 (1960). “Every intendment is to be made in favor of the validity of [an] ordinance and it is the duty of the court to sustain the ordinance unless its invalidity is established beyond a reasonable doubt.” Connecticut Theatrical Corporation v. New Britain, supra; Aaron v. Conservation Commission, 183 Conn. 532, 537, 441 A.2d 30 (1981); Riley v. Board of Police Commissioners, 147 Conn. 113, 117, 157 A.2d 590 (1960). “[T]he court presumes validity and sustains the legislation unless it clearly violates constitutional principles. . . . If there is a reasonable ground for upholding it, courts assume that the legislative body intended to place it upon that ground and was not motivated by some improper purpose. . . . This is especially true where the apparent intent of the enactment is to serve some phase of the public welfare.” State v. Gordon, supra.

The sale of articles of merchandise on streets and other public places is a business which concerns many people in differing ways. Legislation regulating it, which has a reasonable relation to public health, safety and welfare and is not arbitrary or discriminatory, has been sustained by other courts. See, e.g., New Orleans v. Dukes, 427 U.S. 297, 96 S. Ct. 2513, 49 L. Ed. 2d 511 (1976); Good Humor, Inc. v. Mundelein, 33 Ill. 2d 252, 211 N.E.2d 269 (1965); see generally annot., 14 A.L.R.3d 896, Peddling in Streets. In this case, the parties stipulated that the ordinance was enacted out of concern for public safety. The record reveals that this concern focused upon both the safety of children and the free flow of traffic. Blue Sky Bar, Inc. v. Stratford, supra, 266.

“Whether conditions require the degree of regulation imposed by an ordinance is a matter for the judgment of the legislative body of the municipality.” Id., 265, citing Connecticut Theatrical Corporation v. New Britain, supra. Given the fact that courts indulge every legal presumption and reasonable inference of fact in favor of the validity of police power legislation, the existence of facts justifying the enactment are presumed. 6 E. McQuillin, supra, § 24.31. “This strong presumption of legislative validity is overcome only when it plainly appears that the terms of the legislation are not reasonable or that they are not rationally adapted to the promotion of public health, safety, convenience, or welfare. Young v. West Hartford, 111 Conn. 27, 31-32, 149 A. 205 (1930).” Blue Sky Bar, Inc. v. Stratford, supra, 266. The party challenging the enactment bears the burden of overcoming this presumption.

The defendants were certainly entitled to conclude that this ordinance would have the effect of promoting, at least in part, their concern for public safety in the town of Stratford. For example, in Neal v. Shiels, Inc., 166 Conn. 3, 13, 347 A.2d 102 (1974), this court recognized the danger to the safety of children created by vending ice cream on public streets. In Neal, we stated that it is common knowledge that “[w]hen a street vendor deliberately uses a public street or an area close to or adjacent to a public street to sell his wares for profit, and by his bell, gong, chimes or other method of attraction, consciously and intentionally invites potential customers, many of whom are children, to the zone of danger from traffic, it is foreseeable that children would cross the street and be in streets in the area where he is doing business and where there is potential danger . . . [especially] in view of their often singleminded interest in his wares and their accompanying disregard for traffic.” (Emphasis added.) Id. Other courts have recognized the impact that peddlers and itinerant vendors may have on traffic. See, e.g., Piane v. Conway, 118 N.H. 883, 395 A.2d 517 (1978). It is clear, therefore, that the ordinance is directed toward and reasonably calculated to impact the legitimate goal of protecting the safety of the citizens of the town of Stratford. We cannot say that this ordinance was not rationally adapted to that purpose.

In reaching this conclusion, we recognize that the parties have stipulated that during the 1983 vending season, no accidents resulting in personal injuries involving Blue Sky Bar trucks had occurred within the town of Stratford. This alone, however, is not enough to satisfy the plaintiffs’ heavy burden in challenging the rationality of the ordinance. The plaintiffs have failed to present any evidence to the trial court to rebut the presumed rationality of the defendants’ legitimate ongoing concern for public safety. Franklin Furniture Co. v. Bridgeport, 142 Conn. 510, 514, 115 A.2d 435 (1955).

III

We next address the plaintiffs’ claim that the Appellate Court erred in concluding that the Stratford ordinance did not violate the due process and equal protection clauses of the United States constitution. In support of this claim, the plaintiffs argue that the ordinance infringes upon their fundamental right to engage in a lawful business and impermissibly discriminates not only between those who vend from motor vehicles and those who vend from fixed locations, but also between those who vend from motor vehicles and those who do so from bicycles, pushcarts or non-motor vehicles.

“In the case of economic regulation, the test to determine constitutionality is well established in our cases. The equal protection and the due process provisions of both constitutions have the same meaning and the same limitations. Miller v. Heffernan, [173 Conn. 506, 516-17, 378 A.2d 572 (1977)]; Horton v. Meskill, 172 Conn. 615, 639, 376 A.2d 359 (1977); Kellems v. Brown, 163 Conn. 478, 485, 313 A.2d 53, appeal dismissed, 409 U.S. 1099, 93 S. Ct. 911, 34 L. Ed. 2d 678 (1972); Katz v. Brandon, 156 Conn. 521, 537, 245 A.2d 579 (1968); People v. Santiago, 51 App. Div. 2d 1, 10, 379 N.Y.S.2d 843 (1975).” Caldor’s, Inc. v. Bedding Barn, Inc., supra, 314; see also 2 R. Rotunda, J. Nowak & J. Young, Constitutional Law: Substance and Procedure § 15.4, pp. 51-52. “Under any and all of these provisions, an act regulating economic activity must bear a reasonable relationship to a proper legislative purpose in a manner that is neither arbitrary nor discriminatory. Carroll v. Schwartz, 127 Conn. 126, 130, 14 A.2d 754 (1940). ‘The court’s function . . . is to decide whether the purpose of the legislation is a legitimate one and whether the particular enactment is designed to accomplish that purpose in a fair and reasonable way. If an enactment meets this test, it satisfies the constitutional requirements of due process and equal protection.’ 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). The constitutional issue is whether legislative classifications or discriminations bear ‘a rational relationship to a legitimate state end and [are] based on reasons related to the pursuit of that goal.’ Gentile v. Altermatt, 169 Conn. 267, 295, 363 A.2d 1, appeal dismissed, 423 U.S. 1041, 96 S. Ct. 763, 46 L. Ed. 2d 631 (1976).” Caldor’s, Inc. v. Bedding Barn, Inc., supra, 314-15. “[T]he judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines ... in the local economic sphere, it is only the invidious discrimination, the wholly arbitrary act, which cannot stand consistently with the Fourteenth Amendment.” New Orleans v. Dukes, supra, 303-304.

We disagree with the plaintiffs’ argument that the ordinance impermissibly infringes upon their right to engage in a lawful business. Putting aside the argument that it is the sale of ice cream, and not the method by which it is done, that is the plaintiffs’ business, it is clear that “even a legitimate occupation may be restricted or prohibited in the public interest.” Breard v. Alexandria, supra, 632-33, citing New State Ice Co. v. Liebmann, 285 U.S. 262, 280, 303, 52 S. Ct. 371, 76 L. Ed. 747 (1932) (Brandeis, J., dissenting). We have already concluded in part II of this opinion that the purpose of the ordinance is valid and that the means the defendants chose to accomplish that purpose are reasonable. In addition, we note that “where the legislative judgment is drawn in question, [the inquiry] must be restricted to the issue [of] whether any state of fact either known or which could reasonably be assumed, affords support for [the legislation].” (Emphasis added.) United States v. Carolene Products Co., 304 U.S. 144, 154, 58 S. Ct. 778, 82 L. Ed. 1234 (1938); see Williamson v. Lee Optical, 348 U.S. 483, 490, 75 S. Ct. 461, 99 L. Ed. 563, reh. denied, 349 U.S. 925, 75 S. Ct. 657, 99 L. Ed. 1256 (1955). The ordinance clearly meets the requirements of the due process clause.

Under the relaxed constitutional standard of review applied to economic regulation, we also conclude that the challenged classification is rationally related to the purpose of the ordinance. See New Orleans v. Dukes, supra. Although a “ ‘legislative act . . . may not establish classes that have no reasonable relation to any permissible, public purpose . . . [it] does not . . . prevent the legislature from dealing differently with different classes of people. It means only that classifications must be based on natural and substantial differences, germane to the subject and purpose of the legislation, between those within the class included and those whom it leaves untouched.’ Tough v. Ives, 162 Conn. 274, 292-93, 294 A.2d 67 (1972); New Orleans v. Dukes, [supra, 303].” Caldor’s, Inc. v. Bedding Barn, Inc., supra, 315. The ordinance distinguishes vendors who merchandise their wares by means of motor vehicles from vendors who merchandise by means of non-motor vehicles. We cannot say that the plaintiffs have established that this classification is irrational in relation to its stated purpose. The Stratford town council could reasonably have concluded that vending from nonmotor vehicles has less of an impact on the free flow of traffic and presents less of an overall safety hazard to children than vending from motor vehicles. These judgments are not so lacking in rationality that they result in a constitutionally impermissible denial of equal protection. See New Orleans v. Dukes, supra.

IV

We next address the plaintiffs’ final claim that the Appellate Court erred in concluding that the ordinance does not impermissibly interfere with interstate commerce. The plaintiffs argue that the prohibition on sales from motor vehicles constitutes an impermissible burden on interstate commerce. Specifically, the plaintiffs argue that the “mere incantation of a purpose to promote public health or safety does not insulate [an ordinance] from a Commerce Clause attack” and that an “illusory safety justification” should not be found to be a reasonable basis for enacting an ordinance which interferes with interstate commerce.

“Although the criteria for determining the validity of state statutes affecting interstate commerce have been variously stated, the general rule that emerges can be phrased as follows: Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 443 [80 S. Ct. 813, 4 L. Ed. 2d 852 (1960)].” Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S. Ct. 844, 25 L. Ed. 2d 174 (1970); see also Edgar v. Mite Corporation, 457 U.S. 624, 102 S. Ct. 2629, 73 L. Ed. 2d 269 (1982); 1 R. Rotunda, J. Nowak & J. Young, supra, § 11.9, pp. 618-19. “If a legitimate local purpose is found, then the question becomes one of degree.” Pike v. Bruce Church, Inc., supra.

We note that in this case, we are dealing with “ ‘legislation in the field of safety where the propriety of local regulation has long been recognized.’ ” Pike v. Bruce Church, Inc., supra, 143, quoting Southern Pacific Co. v. Arizona, 325 U.S. 761, 796, 65 S. Ct. 1515, 89 L. Ed. 1915 (1945) (Douglas, J., dissenting); see also Kassel v. Consolidated Freightways Corporation, 450 U.S. 662, 670, 101 S. Ct. 1309, 67 L. Ed. 2d 580 (1981) (“a State’s power to regulate commerce is never greater than in matters traditionally of local concern”). There is a strong presumption of validity that surrounds safety regulations and the burden of overcoming that strong presumption rests on the party challenging the regulation on commerce clause grounds. Specialized Carriers & Rigging Assn. v. Virginia, 795 F.2d 1152, 1159 (4th Cir. 1986).

As we have already discussed, the ordinance was enacted to effectuate a legitimate local public interest. We note also that the ordinance operates evenhandedly to effectuate this interest. Because of the ordinance, no person may “vend or peddle . . . from any type of motor vehicle any commodity whatsoever.” By virtue of its general application, this ordinance cannot be criticized as an attempt by the defendants to protect the economic interests of local vendors at the expense of nonlocal vendors. This case is distinguishable, therefore, from those cases in which courts have struck down challenged legislation which had been enacted in order to protect local interests from out-of-state competition. Cf. Dean Milk Co. v. Madison, 340 U.S. 349, 71 S. Ct. 295, 95 L. Ed. 329 (1951); Hood & Sons, Inc. v. DuMond, 336 U.S. 525, 69 S. Ct. 657, 93 L. Ed. 865 (1949). “[Regulation that leaves out-of-state sellers on the same basis as local sellers [is not] invalid. ...” Breard v. Alexandria, supra, 638.

We do not agree with the plaintiffs’ conclusory statement that the probable impact of the ordinance is to create an “enormous burden on interstate commerce.” Any impact on interstate commerce which may result from this ordinance, insofar as is apparent from the record before us, is certainly incidental. The plaintiffs have come forth with no showing that “ ‘the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits.’ ” Pharmaceutical Manufacturers Assn. v. Whalen, 54 N. Y.2d 486, 496, 430 N.E.2d 1270, 446 N.Y.S.2d 217 (1981). We cannot conclude, therefore, that the plaintiffs have established that the Stratford ordinance violates the commerce clause. Pike v. Bruce Church, Inc., supra; see also Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 472-73, 101 S. Ct. 715, 66 L. Ed. 2d 659, reh. denied, 450 U.S. 1027, 101 S. Ct. 1735, 68 L. Ed. 2d 222 (1981). The United States Supreme Court has “stressed that the Commerce Clause ‘protects the interstate market, not particular interstate firms, from prohibitive or burdensome regulations.’ . . . Anon-discriminatory regulation serving substantial [local] purposes is not invalid simply because [the burden falls more heavily on a particular business]. Only if the burden on interstate commerce clearly outweighs the . . . legitimate [local] purposes does such a regulation violate the Commerce Clause.” Minnesota v. Clover Leaf Creamery Co., supra, 474. The trial court and the Appellate Court were fully justified in concluding that the ordinance is rationally related to the health and safety of the community, that it does not discriminate against interstate commerce or disrupt its required uniformity and, therefore, does not violate the commerce clause.

We affirm the decision of the Appellate Court.

In this opinion the other justices concurred.

       In its entirety, the ordinance provides as follows: “It shall be unlawful for any person to vend or peddle upon the public streets, public property, and town property of the town of Stratford from any type of motor vehicle any commodity whatsoever.
      “Any person who violates this article shall be fined not less than one hundred dollars ($100.00).”

       The plaintiffs also sought “[a]ny other relief, legal or equitable, that the court deems proper.”

       Specifically, the court held that the ordinance did not violate the due process and equal protection clauses of the fourteenth amendment to the United States constitution nor did it violate the commerce clause of the United States constitution.

       The record indicates that this claim was made for the first time on appeal in the Appellate Court. The Appellate Court, after concluding that the plaintiffs had not presented any exceptional circumstances which would justify departure from the rule that claims not distinctly raised at trial cannot be raised for the first time on appeal, refused to address the merits of the plaintiffs’ claim. Blue Sky Bar, Inc. v. Stratford, 4 Conn. App. 261, 263 n.2, 493 A.2d 908 (1985). We agree with this conclusion of the Appellate Court and, therefore, will not address this claim, except to the extent that it may be implicated in our discussion of the other issues.

       General Statutes (Rev. to 1983) § 21-37 provides: “town ordinances. Any town may make reasonable ordinances with reference to the vending or hawking upon its public streets of any goods, wares or other merchandise at public or private sale or auction, or to the vending or peddling of such articles from house to house within its limits, including the imposition of a fee, not exceeding two hundred fifty dollars a year, applicable with respect to any person engaged in such vending, hawking or peddling, for the privilege of so vending, hawking or peddling such merchandise. This section shall not apply to sales by farmers and gardeners of the produce of their farms and gardens, or to the sale, distribution and delivery of milk, teas, coffees, spices, groceries, meats and bakery goods, to sales on approval, to conditional sales of merchandise, or to the taking of orders for merchandise for future delivery when full payment is not required at the time of solicitation.”

       General Statutes § 7-148 (c) (7) (H) (iv) provides: “(c) Powers. Any municipality shall have the power to do any of the following, in addition to all powers granted to municipalities under the constitution and general statutes ... (7) Regulatory and police powers . . . (H) Health and Safety . . . (iv) Prohibit, restrain, license and regulate the business of peddlers, auctioneers and junk dealers in a manner not inconsistent with the general statutes.”

       An ordinance is a legislative enactment of a municipality. 2 J. Sutherland, Statutory Construction (4th Ed. Sands) § 30.01. “ ‘It designates a local law of a municipal corporation, duly enacted by the proper authorities, prescribing general, uniform, and permanent rules of conduct relating to the corporate affairs of the municipality. 5 McQuillin, Municipal Corporations (3d Ed.) § 15.01.’ Morris v. Newington, 36 Conn. Sup. 74, 80, 411 A.2d 939 (1979) [aff’d, 180 Conn. 89, 428 A.2d 342 (1980)].” Blue

        Sky Bar, Inc. v. Stratford, 4 Conn. App. 261, 265, 439 A.2d 908 (1985). An ordinance is subject to the same canons of construction as are applied to state statutes. Aaron v. Conservation Commission, 183 Conn. 532, 537, 441 A.2d 30 (1981); 2 J. Sutherland, supra, § 30.06.

       “ ‘Where municipal authorities act in accordance with formal requirements, courts will interfere only “where fraud, corruption, improper motives or influences, plain disregard of duty, gross abuse of power, or violation of law, enter into or characterize . . . [the action taken].” Whitney v. New Haven, 58 Conn. 450, 457, 20 A. 666 [1890]; LaTorre v. Hartford, 167 Conn. 1, 9, 355 A.2d 101 [1974]; 13 McQuillin, Municipal Corporations (3d Ed.) §§ 37.03, 37.26.’ Pizzuto v. Newington, 174 Conn. 282, 286, 386 A.2d 238 (1978).” Blue Sky Bar, Inc. v. Stratford, 4 Conn. App. 261, 265, 493 A.2d 908 (1985); see Northeast Electronics Corporation v. Royal Associates, 184 Conn. 589, 592, 440 A.2d 239 (1981).

       The plaintiffs characterize this claim as a deprivation of their “fundamental right” to engage in a lawful business. While we agree with the plaintiffs’ contention that whenever an ordinance infringes on a fundamental right, it must be justified by a compelling government interest, we disagree with the plaintiffs’ characterization of their rights as “fundamental.” In Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 67 L. Ed. 1042 (1923), the United States Supreme Court indicated that the due process clause of the fourteenth amendment “denotes not merely freedom from bodily restraint but also the right of the individual ... to engage in any of the common occupations of life . . . .” Meyer, we note, stated: “The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect.” Id., 399-400. This view accords with Lawton v. Steele, 152 U.S. 133, 137, 14 S. Ct. 499, 38 L. Ed. 385 (1894), where the United States Supreme Court stated: “The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations.” See State v. McCleary, 65 N.C. App. 174, 180-81, 308 S.E.2d 883 (1983). Thus, “[a] state law will not be permitted to deny a person the right to pursue his occupation . . . unless it is rationally related to the achievement of a legitimate state interest. Kelley v. Johnson, 425 U.S. 238, 247, 96 S. Ct. 1440, 47 L. Ed. 2d 708 (1976); Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 172-73, 92 S. Ct. 1400, 31 L. Ed. 2d 768 (1972).” Margaret S. v. Treen, 597 F. Sup. 636, 674 (E.D. La. 1984), aff'd, 794 F.2d 994 (5th Cir. 1986). The Michigan Court of Appeals has, in this context, appropriately observed: “The right or privilege of engaging in business is an important aspect of liberty, but it is not a fundamental right. Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965); Ferguson v. Skrupa, 372 U.S. 726, 83 S. Ct. 1028, 10 L. Ed. 2d 93 (1963).” Stockler v. Treasury Department, 75 Mich. App. 640, 646, 255 N.W.2d 718 (1977), appeal dismissed, 435 U.S. 963, 98 S. Ct. 1598, 56 L. Ed. 2d 54 (1978).

       The plaintiff also claims that a less intrusive means of regulating motorized vendors could have been employed which could have made motorized vending safer than other forms of street vending. In exercising its police power, a local legislative body has broad discretion, both in determining what the public welfare requires and in fashioning legislation to meet that need. Mott’s Super Markets, Inc. v. Frassinelli, 148 Conn. 481, 487, 172 A.2d 381 (1961). In the economic sphere, the test is whether it is conceivable that the legislation bears a rational relationship to a legitimate government objective; there is no requirement that the legislature enact the least intrusive means of accomplishing a desired goal. See New Orleans v. Dukes, 427 U.S. 297, 303-304, 96 S. Ct. 2513, 49 L. Ed. 2d 511 (1976), citing Katzenbach v. Morgan, 384 U.S. 641, 657, 86 S. Ct. 1731, 16 L. Ed. 2d 828 (1966); Williamson v. Lee Optical, 348 U.S. 483, 489, 75 S. Ct. 461, 99 L. Ed. 562 (1954), reh. denied, 349 U.S. 925, 75 S. Ct. 657, 99 L. Ed. 1256 (1955).

       In support of this contention, the plaintiffs allege that certain products purchased and sold by their company are part of the stream of interstate commerce.

       “A challenged law need not be a state statute to violate the commerce clause; a local ordinance can also create an unlawful infringement on interstate commerce.” Service Machine & Shipbuilding Corporation v. Edwards, 617 F.2d 70, 73 (5th Cir.), aff’d, 449 U.S. 913, 101 S. Ct. 310, 66 L. Ed. 2d 142 (1980).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    State of Connecticut v. Anthony Atkins
    (13065)
    Peters, C. J., Healey, Dannehy, Santaniello and Callahan, Js.
    Argued March 3
    decision released March 31, 1987

      A. Paul Spinella, with whom was Alexander H. Schwartz, for the appellant (defendant).

      James G. Clark, assistant state’s attorney, for the appellee (state).
   Per Curiam.

This is an appeal from an order of the trial court holding the defendant, Anthony Atkins, for trial after a finding by the trial court that the state had established probable cause to believe that the defendant had committed the crimes of murder and felony murder. This court gave notice to the parties to appear and be heard on whether the defendant’s appeal should not be dismissed for lack of a final judgment. We conclude that the trial court’s order was not a final judgment and that this appeal should therefore be dismissed.

Because the trial court’s order was rendered before the defendant’s conviction and sentencing, the order is interlocutory and its appealability is governed by the rules set forth in State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). As State v. Mitchell, 200 Conn. 323, 332, 512 A.2d 140 (1986), demonstrates, the order satisfies neither part of the Curcio test. Mitchell holds (p. 332) that a probable cause hearing constitutes an integral part of a criminal prosecution; accordingly, the present order does not “[terminate] a separate and distinct proceeeding.” State v. Curcio, supra. Mitchell also holds (p. 331) that the merits of a finding of probable cause are reviewable after conviction and sentencing; accordingly, the present order does not “so [conclude] the rights of the parties that further proceedings cannot affect them.” State v. Curcio, supra.

The appeal is dismissed.


author: Shea, J.

text:
    Sebastian V. Blancato, Sr., Administrator (Estate of Sebastian V. Blancato, Jr.), et al. v. The Feldspar Corporation et al.
    (12973)
    Peters, C. J., Healey, Shea, Santaniello and Callahan, Js.
    Argued January 14
    decision released March 31, 1987

      John M. Creane, for the appellants (plaintiffs).

      James J. Carroll, for the appellees (defendants).
   Shea, J.

The plaintiffs have appealed from a judgment for the defendants that was rendered by the court after a motion to strike the complaint had been granted. Sebastian V. Blancato, Sr., and Barbara J. Blancato, the parents of the minor decedent, Sebastian V. Blancato, Jr., in their individual capacities, and Blancato, Sr., in his representative capacity as administrator of the decedent’s estate, brought this action in six counts against the defendant Feldspar Corporation and certain of its employees. The plaintiffs alleged negligence, various intentional torts, breach of contract and the infliction of emotional distress arising from the decedent’s death while engaged in hazardous work at the named defendant’s mining facility in Middletown. The trial court determined that our Workers’ Compensation Act; General Statutes §§ 31-275 through 31-355a; provides the exclusive remedy for the fatal injuries suffered by the plaintiffs’ decedent. We find error.

The first count of the complaint alleges: that on December 8,1980, the named defendant hired the decedent, a seventeen year old minor, to work as a sand operator trainee in violation of General Statutes § 31-23 (b); that on December 9, 1980, nearly twelve hours after reporting to work that day, the decedent, working alone and unsupervised, entered a bin containing wet sand and was buried alive; and that the decedent consequently died of asphyxiation.

Because this appeal is before us pursuant to a motion to strike, we note preliminarily that we must take the facts to be those alleged in the complaint, as amended, and must construe the complaint in the manner most favorable to the pleader. Morris v. Hartford Courant Co., 200 Conn. 676, 678, 513 A.2d 66 (1986); Norwich v. Silverberg, 200 Conn. 367, 370, 511 A.2d 336 (1986). While recognizing that a motion to strike does not admit legal conclusions; see Rossignol v. Danbury School of Aeronautics, Inc., 154 Conn. 549, 557, 227 A.2d 418 (1967); we shall assume for the purposes of this appeal, because of the allegation that the decedent was hired in violation of § 31-23 (b), that he had been illegally employed. Cf. Lamb v. Burns, 202 Conn. 158, 172, 520 A.2d 190 (1987); Trichilo v. Trichilo, 190 Conn. 774, 779, 462 A.2d 1048 (1983). We therefore address the limited issue of whether the exclusive remedy provision of our Workers’ Compensation Act bars the estate of a minor killed while illegally employed from bringing a suit for wrongful death pursuant to General Statutes § 52-555.

General Statutes § 31-284 (a) of our Workers’ Compensation Act provides in part that “[a]n employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees . . . . ” The term “employee” is defined by General Statutes § 31-275 (5) in relevant part as “any person who has entered into or works under any contract of service or apprenticeship with an employer . . . . ” Because only employees are entitled to compensation under the act, it is clear that coverage must arise from a contract of employment, either express or implied. Sibley v. State, 89 Conn. 682, 686-87, 96 A. 161 (1915). The attendant ability on the part of an employer to invoke § 31-284 (a) to bar an employee’s common law damage suit or an action for wrongful death on behalf of his estate similarly arises only when a valid employment contract exists between the parties.

Our Workers’ Compensation Act does not specifically address the question of the remedies available to illegally employed minors injured in the course of their employment. It has been several decades since this court encountered such an issue. The question in Kenez v. Novelty Compact Leather Co., 111 Conn. 229, 149 A. 679 (1930), was whether a child employed in violation of a predecessor of General Statutes § 31-23 was entitled to compensation under the terms of the act. The employer relied on the general principle that agreements in violation of public policy are unenforceable, and thus the child could not be deemed an “employee” as defined by § 31-275 (5). Holding that the child was an employee within the act despite the illegal employment contract, this court stated that “as regards the child the legislature very evidently did not regard him as in any sense a real wrongdoer if he entered into such a contract without there being a compliance with the statutes. It might be that the employer could get no advantage from such a contract in a court of law because he would not be permitted to set up the fact that he had acted in contravention of its mandate, but that would not necessarily prevent the child from claiming any benefit which might arise out of its terms.” Kenez v. Novelty Compact Leather Co., supra, 234. The court in Kenez seemed to recognize that the child and the employer were not in pari delicto in entering into the illegal contract and that such a contract might be unilaterally enforceable by the child.

When the issue we face today subsequently arose in Greenberg v. Guiliano, 131 Conn. 157, 38 A.2d 436 (1944), however, the court refused to allow the illegally employed minor to avoid the employment contract in order to bring an action for injuries received during his employment. The Greenberg court relied upon the ruling in Kenez that an illegally employed minor is an employee within the terms of the act, and upon the case of Wells v. Radville, 112 Conn. 459, 463, 153 A. 154 (1931), which had held that the administrator of the estate of a minor who had been legally employed cannot sue the employer in a wrongful death action for negligently having caused the minor’s death. The court in Greenberg extrapolated from those cases the rule that an illegally employed minor, too, cannot recover from his employer in a common law damage suit. This rule, of course, affords the employer an advantage from the illegal employment contract and thus appears to be inconsistent with dicta in Kenez quoted above. In the present case the plaintiffs request that we overrule our decision in Greenberg. We are persuaded that the rule of Greenberg is no longer viable.

We agree with the view set forth by the Supreme Court of Alaska in Whitney-Fidalgo Seafoods, Inc. v. Beukers, 554 P.2d 250, 253 (Alaska 1976), that “[t]he child labor laws . . . are premised in part on the notion that a child is not competent to assess the risks of personal injury and exploitation attendant in the performance of hazardous activities. Where one party to an agreement possesses a legal disability of this type, we will not permit the other, who occupies a superior bargaining position, to raise the agreement as a shield against the child’s common law suit.” See also Widdoes v. Laub, 33 Del. 4, 129 A. 344 (1925); Secklich v. Harris-Emery Co., 184 Iowa 1025, 169 N.W. 325 (1918); Hadley v. Security Elevator Co., 175 Kan. 395, 264 P.2d 1076 (1953); Rock Island Coal Mining Co. v. Gilliam, 89 Okla. 49, 213 P. 833 (1923); Wlock v. Fort Dummer Mills, 98 Vt. 449, 129 A. 311 (1925); but see Winn-Lovett Tampa, Inc. v. Murphree, 73 So. 2d 287 (Fla. 1954); Mott v. River Parish Maintenance, Inc., 417 So. 2d 384 (La. App. 1982); Bingham v. Lagoon Corporation, 707 P.2d 678 (Utah 1985); see generally 1C A. Larson, Workmen’s Compensation (1986) § 47.52 (a). Consequently, we conclude that the trial court erred in determining that our Workers’ Compensation Act provides the exclusive remedy for the death of the plaintiffs’ decedent.

We hold that the plaintiff administrator’s wrongful death action pleaded in the first count of the complaint is not barred by § 31-284 (a). We recognize that agreements made in violation of public policy have been deemed unenforceable and “void.” See Casanova Club v. Bisharat, 189 Conn. 591, 458 A.2d 1 (1983); Griffin v. Nationwide Moving & Storage Co., 187 Conn. 405, 446 A.2d 799 (1982); McCarthy v. Santangelo, 137 Conn. 410, 78 A.2d 240 (1951). Courts will ordinarily condemn entire agreements as unenforceable by both parties, however, only if both are in pari delicto. See Vaszauskas v. Vaszauskas, 115 Conn. 418, 423, 161 A. 856 (1932); E. Farnsworth, Contracts (1982) § 5.1, p. 327. We agree that “[i]t would be just as inequitable to allow the employer to avoid liability for compensation benefits on the basis of the illegality of the employment contract, as it would be to permit it to deny common law liability on the basis of the wrongful contract. . . . [T]his form of illegality produces a voidable, rather than void, contract. Thus . . . the minor should have the option of avoiding or ratifying the contract of hire, similar to the prerogative minors possess with regard to other contractual arrangements.” Whitney-Fidalgo Seafoods, Inc. v. Beukers, supra, 253-54; see also American Surety Co. v. Clarksville, 204 Tenn. 67, 75, 315 S.W.2d 509 (1958). Our decision, therefore, must not be interpreted to bar a meritorious workers’ compensation claim by a minor who was illegally employed when injured but who chooses not to bring a common law suit. We have not declared that such a minor is not an employee within the terms of our Workers’ Compensation Act, and thus do not disturb this court’s ruling in Kenez v. Novelty Compact Leather Co., supra.

As the quotation from Whitney-Fidalgo Seafoods, Inc., suggests, our disposition of the present case accords with the common law doctrine that a child who enters into a contract may elect "to avoid the legal relations created by the contract, or by ratification of the contract to extinguish the power of avoidance.” 1 Restatement (Second), Contracts § 7. While personal to the minor, the power of avoidance can be exercised by his legal representative including, in the event of the minor’s death, his executor or administrator. See Gendreau v. North American Life & Casualty Co., 158 Minn. 259, 197 N.W. 257 (1924); Eagan v. Scully, 29 App. Div. 617, 51 N.Y.S. 680 (1898), aff'd, 173 N.Y. 581, 65 N.E. 1116 (1902); E. Farnsworth, supra, § 4.4, p. 217. The other party, however, is bound unless the minor elects to avoid the contract. Nevertheless, we limit this power of election with respect to employment contracts to minors who had been illegally employed. Minors employed lawfully, and therefore not in derogation of our child labor laws, are brought, by the specific language of our Workers’ Compensation Act, within its provisions. General Statutes § 31-310 provides in part that, “[f]or the purpose of determining the amount of compensation to be paid in the case of a minor under the age of eighteen years who has sustained an injury entitling him to compensation for total or partial incapacity for a period of fifty-two or more weeks, or to specific indemnity for any injury under the provisions of section 31-308, the commissioner may add fifty per cent to his average weekly wage, except in the case of a minor under sixteen years of age, in which case the commissioner may add one hundred per cent to his average weekly wage.” It is therefore reasonable to deduce that the legislature intended to make the exclusive remedy provision of General Statutes § 31-284 similarly applicable to such minor employees. We thus find no inconsistency between our holding today and the determination of this court in Wells v. Radville, supra, that the administrator of the estate of a lawfully employed minor is barred from suing the employer in a wrongful death action.

In the first count of his complaint, which sounds in negligence, the plaintiff administrator alleges that the defendants assigned the inexperienced decedent to hazardous work without the benefit of adequate training or supervision, and without furnishing necessary safety devices. In light of our conclusion that the plaintiff administrator may bring a damage suit, we hold that the trial court erred in granting the defendants’ motion to strike with respect to the first count, which alleges sufficient facts to sustain the plaintiff administrator’s cause of action for negligence. See Belevicze v. Platt Bros. & Co., 84 Conn. 632, 636, 81 A. 339 (1911).

In the four remaining counts of the complaint the plaintiffs have attempted to allege facts that might constitute additional grounds for avoiding the prohibition in § 31-284 (a) against suing employers for work-related injuries. In Jett v. Dunlap, 179 Conn. 215, 221, 425 A.2d 1263 (1979), we recognized for intentional torts committed by an employer an exception to the exclusivity of the workers’ compensation remedy. As the trial court in the present case noted in its memorandum of decision on the motion to strike, the remaining counts of the complaint apparently were drafted in order to raise claims falling within that exception. Adopting the single ground set forth by the defendants in their memorandum in support of the motion to strike, the court ruled that the allegations of the complaint suffered from the shortcomings we recently deemed fatal to the common law action brought in Mingachos v. CBS, Inc., 196 Conn. 91, 96, 491 A.2d 368 (1985). In Mingachos we declined to extend judicially the Jett exception to § 31-284 “ ‘to include accidental injuries caused by the gross, wanton, wilful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of genuine intentional injury.’ ” Mingachos v. CBS, Inc., supra, 108, quoting 2A A. Larson, Workmen’s Compensation (1976) § 68.13. Because we recognize a further exception to the exclusivity of the act where a minor has been illegally employed, we need not scrutinize the complaint to gauge the applicability of the Jett exception.

If the remaining counts of the complaint fail to allege sufficient facts to sustain the plaintiffs’ causes of action for intentional torts, breach of contract and infliction of emotional distress, when considered without reference to the Jett exception, the defendants have not alleged such an alternative ground in their motion to strike. This court will not uphold the granting of the motion to strike on a ground not alleged in the motion nor relied upon by the trial court. See Morris v. Hartford Courant Co., supra, 682; W. Maltbie, Connecticut Appellate Procedure § 65. The trial court, in passing upon the defendants’ motion, properly considered only the ground they did specify. Morris v. Hartford Courant Co., supra; Cyr v. Brookfield, 153 Conn. 261, 263, 216 A.2d 198 (1965). We review this case on the theory upon which it was decided below. Mingachos v. CBS, Inc., supra, 96; Fuessenich v. DiNardo, 195 Conn. 144, 151, 487 A.2d 514 (1985). We therefore decline to ascertain whether any appropriate alternative grounds exist upon which to uphold the court’s ruling with respect to the remaining counts.

There is error, the judgment is set aside and the case is remanded with direction to deny the motion to strike and for further proceedings.

In this opinion the other justices concurred.

       General Statutes § 31-23 (b) provides in relevant part: “No minor under the age of eighteen years shall be employed or permitted to work in any occupation which has been or shall be pronounced hazardous to health by the department of health services or pronounced hazardous in other respects by the labor department.”
      Although the plaintiffs’ complaint alleges violations of various federal safety regulations, and that the United States Bureau of Mines issued a report, following the death by asphyxiation in 1970 of an eighteen year old worker, recommending that the defendant Feldspar Corporation “ ‘should install a grizzly or series of bars across the feed opening ... so that a man could not enter through the opening,’ ” it does not allege that the department of health services or the labor department had pronounced hazardous the mining occupation in which the decedent had been permitted to work. See Practice Book § 108. Nevertheless, because the defendants have failed to address this deficiency, we shall assume, for the purposes of this appeal, that the decedent had been illegally employed, based upon the unchallenged allegation of a violation of § 31-23 (b).

       The plaintiffs allege a violation of General Statutes § 31-12, which provides in relevant part: “None of the following persons under the conditions hereinafter described shall be employed in any manufacturing or mechanical establishment more than nine hours in any day or forty-eight hours in any calendar week: (a) Persons under the age of eighteen years . ” In 1985, § 31-12 was amended by No. 85-28 of the 1985 Public Acts to apply to “[p]ersons under the age of eighteen years, except such persons who have graduated from a secondary educational institution.” This amendment is inapplicable to the present case. General Statutes § 1-1 (u).

       We note preliminarily that the defendants’ motion to strike failed to comply with Practice Book § 154, which requires that a motion to strike based on legal insufficiency distinctly specify the reason or reasons for each such claimed insufficiency. The motion filed sought to strike the amended complaint “for failure to state a cause of action against these defendants.” We have said that a motion to strike that does not specify the grounds of insufficiency is “fatally defective”; Lubas v. McCusker, 153 Conn. 250, 253, 216 A.2d 289 (1965); and that “Practice Book § 155, which requires a motion to strike to be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies, does not dispense with the requirement of § 154 that the reasons for the claimed pleading defiiency be specified in the motion itself.” King v. Board of Education, 195 Conn. 90, 94 n.4, 486 A.2d 1111 (1985); Morris v. Hartford Courant Co., 200 Conn. 676, 683 n.5, 513 A.2d 66 (1986). Although the plaintiffs, in their memorandum of law in opposition to the motion to strike, objected to the defendants’ failure to comply with § 154, they have not raised this issue on appeal and thus are deemed to have abandoned the issue. See McHugh v. McHugh, 181 Conn. 482, 490 n.4, 436 A.2d 8 (1980); Karls v. Alexandra Realty Corporation, 179 Conn. 390, 393 n.l, 426 A.2d 784 (1980). Because we do not consider § 154 to be jurisdictional in nature, we will consider the motion to strike in the form presented to the trial court. Morris v. Hartford Courant Co., supra.

       Because the plaintiffs have also brought this action against certain employees of the named defendant, we note that General Statutes § 31-293a, similarly an exclusive remedy provision, states in part: “If an employee or, in case of his death, his dependent has a right to benefits or compensation under this chapter on account of injury or death from injury caused by the negligence or wrong of a fellow employee, such right shall be the exclusive remedy of such injured employee or dependent and no action may be brought against such fellow employee unless such wrong was wilful or malicious or the action is based on the fellow employee’s negligence in the operation of a motor vehicle as defined in section 14-1.” Neither in the trial court nor in this court have the parties discussed the issue of whether the illegality of the employment contract with the deceased minor should affect the protection afforded to fellow employees by § 31-293a, who were not parties to that contract. No attempt has been made to differentiate in this respect between the possible liability of the employer and that of the employees, all defendants being represented by the same counsel. For this reason we have decided not to address the question of whether the suit against the employees may also be viable because the employment contract violated General Statutes § 31-23 (b).

       Because “[a]n effective ratification cannot be made by one who is not yet of age”; E. Farnsworth, Contracts (1982) § 4.4, p. 218; no claim of ratification can be made with respect to the plaintiffs’ decedent, who at his death was a minor of seventeen years.

       The fifth count alleges the named defendant’s breach of its employment contract with the decedent in that it allegedly failed to take proper safety precautions upon hiring the decedent. The gravamen of the plaintiffs’ complaint is that their decedent suffered personal injuries resulting in death due to the defendants’ tortious conduct. The exclusive remedy provision of General Statutes § 31-284 (a) of our Workers’ Compensation Act exempts employers from liability “to any action for damages on account of personal injury sustained by an employee . . . . ” Anticipating the further proceedings of this case, we note that if, as a general matter, employees could translate personal injury claims into contract claims, that exclusive remedy provision would be rendered wholly ineffectual.


author: Santaniello, J.

text:
    Wayne Beloff v. Progressive Casualty Insurance Company Progressive Casualty Insurance Company v. Marion Lawrence DiGangi, Administratrix (Estate of James Lawrence), et al. William L. Vogel v. Progressive Casualty Insurance Company
    (12827)
    (12841)
    (12881)
    Peters, C. J., Shea, Dannehy, Santaniello and Callahan, Js.

      Argued December 4, 1986
    decision released March 31, 1987

      Jon S. Berk, with whom, on the brief, was Thomas P. Barrett, for the appellant in the first two cases and the appellee in the third case (Progressive Casualty Insurance Company).

      David H. Herrmann, for the appellee in the first case (plaintiff Wayne Beloff).

      Thomas B. Wilson, with whom, on the brief, was Kerin M. Woods, for the appellee in the second case and the appellant in the third case (named defendant Marion Lawrence DiGangi, Administratrix, and plaintiff William L. Vogel).
   Santaniello, J.

The dispositive issue in this consolidated appeal, is whether, at the relevant times, General Statutes §§ 38-175a through 38-1756 governed motorcycle insurance policies so as to mandate that such policies provide uninsured and underinsured motorist coverage, and that disputes about coverage issues arising out of such policies be submitted for final consideration to binding arbitration. We hold that there was no such mandate.

The underlying facts are not in dispute. In Beloff v. Progressive Casualty Ins. Co., Docket No. 12827, Wayne Beloff was operating a motorcycle on October 26,1982, when he was struck and seriously injured by another motor vehicle. At the time of the accident, Beloff lived at home with his mother, who had insured two motorcycles, including the one Beloff was riding, with Progressive Casualty Insurance Company (Progressive).

Upon settlement of the liability claim with the party responsible for the accident for his full policy limit of $20,000, Beloff sought to recover additional benefits from Progressive, claiming that he was entitled to underinsured motorist benefits under the two motorcycle policies. Each policy contained a provision for uninsured motorist coverage, conditioned on the payment of additional premiums. Beloff s mother, however, had not paid for uninsured motorist protection. Progressive denied Beloff s claim and refused to submit the matter to arbitration.

Beloff brought an action seeking a declaratory judgment that General Statutes §§ 38-175a through 38-175e mandated that all insurance policies provide uninsured and underinsured motorist coverage, and that Progressive must submit all the coverage issues to arbitration. Both Beloff and Progressive filed motions for summary judgment. The trial court, McDonald, J., reasoned that motorcycle insurance policies were required, as a matter of law, to provide uninsured and underinsured motorist coverage, and thus, there was no genuine issue of any material fact. Accordingly, the court granted Beloff’s motion. After the court’s decision, Beloff filed a motion to compel Progressive to submit to binding arbitration on all issues of coverage, liability and damages. The court granted this motion, and Progressive appealed.

In Progressive Casualty Ins. Co. v. DiGangi, Docket No. 12841, James Lawrence was killed on April 11, 1980, when his motorcycle collided with another vehicle. At the time of the accident, Lawrence possessed two insurance policies: an automobile policy issued by Criterion Insurance Company, which provided uninsured motorist coverage in the amount of $20,000, and a motorcycle policy, which also provided for optional uninsured motorist benefits, issued by Progressive. Lawrence had paid a premium for uninsured motorist benefits provided under the Progressive policy.

The operator of the other motor vehicle paid the Lawrence estate his policy limit of $20,000, and thereafter, Marion Lawrence DiGangi, as administratrix of the Lawrence estate, submitted a claim for underinsured motorist benefits under the two policies. Progressive refused the claim and filed an action for declaratory judgment to determine whether underinsured motorist benefits were afforded by its motorcycle policy with Lawrence, and, in the event coverage existed, to determine the order of priority between its policy and the automobile policy issued by Criterion Insurance Company.

DiGangi moved to dismiss the action claiming that, under General Statutes § 38-175c, the issues raised by Progressive’s action had to be decided by arbitration. The trial court, Vasington, J., granted DiGangi’s motion and held that, because Progressive sought to resolve issues involving coverage and because Progressive’s policy contained a binding arbitration clause, § 38-175c mandated that the parties arbitrate the dispute. Upon appeal, the Appellate Court sustained the trial court’s determination, reasoning that Progressive sought to have the issue of coverage decided by the declaratory judgment, and that General Statutes § 38-175c clearly mandated that such issues be determined by arbitration. Progressive Casualty Ins. Co. v. DiGangi, 4 Conn. App. 137, 139, 492 A.2d 548 (1985). Upon the granting of certification, Progressive appealed to this court.

The third case consolidated on appeal, Vogel v. Progressive Casualty Ins. Co., Docket No. 12881, involves a similar factual situation. William Vogel was insured under a motorcycle insurance policy issued by Progressive. This policy contained a provision for uninsured motorist coverage for which Vogel paid an additional premium, and a binding arbitration provision for liability and damage disputes. The policy did not, however, contain a provision for underinsured motorist coverage.

On July 19,1984, Vogel was seriously injured when the motorcycle he was operating was struck by another motor vehicle. Vogel collected the liability policy limit of $25,000 from the operator of the other motor vehicle and then submitted a claim for underinsured motorist benefits under the Progressive policy. Progressive denied the claim and Vogel filed a motion to compel arbitration of his claim. The trial court, Berdon, J., dismissed Vogel’s motion, holding that General Statutes § 38-175c, which mandates binding arbitration of automobile liability insurance policies, did not apply to this case because the insurance policy at issue was a motorcycle policy. Vogel appealed the trial court’s determination. After the Beloff and Vogel appeals were transferred to this court, these appeals were consolidated pursuant to Practice Book § 3002 (now § 4004).

Beloff, DiGangi and Vogel (hereinafter insureds) now contend that General Statutes §§ 38-175a through 38-175e applied to Progressive’s motorcycle insurance policies at the time of their respective accidents so as to mandate the inclusion of uninsured and underinsured motorist coverage, and to mandate the submission of all coverage issues to arbitration. Progressive, on the other hand, argues that its motorcycle policies were not required to include such coverage, nor need it submit coverage issues to arbitration, because these sections did not then apply to motorcycle insurance policies. Thus, to resolve the issue before us, we must determine whether the legislature intended that General Statutes § 38-175a et seq. govern insurance policies covering motorcycles.

Before reaching the merits of this appeal, we must, as a preliminary matter, determine whether the question before us should be decided in arbitration proceedings or by this court. The insureds argue that the issue of whether §§ 38-175a through 38-175e govern motorcycle policies is a “coverage” issue, and as such, must be decided by arbitration as provided by General Statutes § 38-175c (a). Since the basis for the duty to arbitrate relied upon by the insureds is § 38-175c (a), however, we must necessarily first determine whether it applies to motorcycle policies.

Recently, we have had the opportunity to examine the scope of § 38-175c (a). Insecurity Ins. Co. of Hartford v. DeLaurentis, 202 Conn. 178, 188, 520 A.2d 202 (1987), we held that the question of whether a policy’s uninsured motorist coverage provision extended benefits to accidents involving underinsured motorists was a question of coverage to be determined by arbitration. In Wilson v. Security Ins. Group, 199 Conn. 618, 623-24, 509 A.2d 467 (1986), we concluded that issues involving fleet stacking and workers’ compensation setoffs also involved issues of coverage, and therefore were subject to determination by arbitration. See also Carroll v. Aetna Casualty & Surety Co., 189 Conn. 16, 19-21, 453 A.2d 1158 (1983); Oliva v. Aetna Casualty & Surety Co., 181 Conn. 37, 41-42, 434 A.2d 304 (1980).

This appeal is distinguishable from the cases cited in that here there is a dispute as to whether the dictates of § 38-175c (a) apply to the policies in question, not just a dispute over the scope of the coverage mandated by the section. Because the arbitrability of a dispute is ordinarily a legal question for the courts; Frager v. Pennsylvania General Ins. Co., 155 Conn. 270, 274, 231 A.2d 531 (1967); we conclude that the preliminary determination of whether motorcycle policies are governed by §§ 38-175a through 38-175e is a question to be determined by this court, not an arbitrator. Cf. Board of Education v. Frey, 174 Conn 578, 580-81, 392 A.2d 466 (1978).

In construing § 38-175a, we must attempt to ascertain and give effect to the apparent intent of the legislature. Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986); Norwich v. Silverherg, 200 Conn. 367, 370-71, 511 A.2d 336 (1986); Hayes v. Smith, 194 Conn. 52, 57, 480 A.2d 425 (1984); State v. Delafose, 185 Conn. 517, 521, 441 A.2d 158 (1981); 2A J. Sutherland, Statutory Construction (4th Ed. Sands 1984) § 45.05. “When the words of a statute are plain and unambiguous, we need look no further for interpretative guidance because we assume that the words themselves express the intention of the legislature. Johnson v. Manson, 196 Conn. 309, 316, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787 (1986); Mazur v. Blum, 184 Conn. 116, 118-19, 441 A.2d 65 (1981). When we are confronted, however, with ambiguity in a statute, we seek to ascertain the actual intent by looking to the words of the statute itself; State v. Kozlowski, [199 Conn. 667, 673, 509 A.2d 20 (1986)]; Dukes v. Durante, 192 Conn. 207, 214, 471 A.2d 1368 (1984) ; the legislative history and circumstances surrounding the enactment of the statute; State v. Kozlowski, supra, 673; DeFonce Construction Corporation v. State, 198 Conn. 185, 187, 501 A.2d 745 (1985) ; State v. Parmalee, 197 Conn. 158, 161, 496 A.2d 186 (1985); State v. Delafose, supra, 522; and the purpose the statute is to serve. Peck v. Jacquemin, 196 Conn. 53, 64, 491 A.2d 1043 (1985); Verrastro v. Sivertsen, 188 Conn. 213, 221, 448 A.2d 1344 (1982); Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 8, 434 A.2d 293 (1980).” Rhodes v. Hartford, supra.

An examination of the language of § 38-175a fails to reveal definitively the types of vehicles that it governed at the time the policies involved in these cases were in force. Section 38-175a provides, in relevant part, that the “regulations with respect to minimum provisions to be included in automobile liability insurance policies . . . covering private passenger automobiles and commercial motor vehicles, as defined in subsection (7) of section 14-1 . . . shall make mandatory the inclusion of . . . uninsured motorists coverages . . . .” (Emphasis added.) At first blush, the cross reference in § 38-175a itself would appear to resolve the issue before us. General Statutes § 14-1 (7), however, defines only “commercial motor vehicle.” It does not define “private passenger automobiles,” nor is “private passenger automobiles” defined elsewhere in the statutes. It is therefore unclear from § 38-175a whether the legislature intended “automobile liability insurance policies. . . covering private passenger automobiles” to include coverage for motorcycles.

The insureds urge us to look to statutes governing similar subject matter to help ascertain the legislative intent. They contend that General Statutes § 38-175f, regulating the cancellation of motor vehicle policies, adequately designates the types of vehicles covered by “automobile liability insurance policies,” and that motorcycles are-so included.

General Statutes (Rev. to 1983) § 38-175f states that the vehicles covered by automobile liability insurance policies include “the following types only: (1) A motor vehicle of the private passenger or station wagon type that is not used as a public or livery conveyance for passengers, nor rented to others, or (2) any other four-wheel motor vehicle with a load capacity of fifteen hundred pounds or less which is not used in the occupation, profession or business of the insured . . . .”In light of this statute, the insureds argue that because a “passenger motor vehicle” is defined as a “motor vehicle which has the capacity of carrying not more than ten passengers”; General Statutes § 14-1 (35); and because a motorcycle is defined as a “motor vehicle having not more than three wheels”; General Statutes § 14-1 (25); therefore, motorcycles are “motor vehicle[s] of the private passenger . . . type”and accordingly are types of vehicles covered by “automobile liability insurance policies.”

While we recognize the principle that statutes are to be interpreted with regard to other relevant statutes because the legislature is presumed to have created a consistent body of law; Heffernan v. Slapin, 182 Conn. 40, 46, 438 A.2d 1 (1980); State v. Giorgio, 2 Conn. App. 204, 209, 477 A.2d 134 (1984); we find General Statutes § 38-175f of little help in interpreting § 38-175a. Section 38-175f, and more specifically the term “motor vehicle of the private passenger . . . type” as set forth in that section, is itself not free from ambiguity. Although § 14-1 (35) defines “passenger motor vehicle” as a motor vehicle which has the capacity to carry not more than 10 persons, “private passenger motor vehicle,” virtually the same phrase used in the mandate of minimum coverage contained in § 38-175a, is defined differently elsewhere in the statutes. Additionally, § 38-175f refers to the types of vehicles covered as a “motor vehicle of the private passenger or station wagon type ... or any other four-wheel motor vehicle” implying that all vehicles referred to in § 38-175f must be four-wheel motor vehicles. (Emphasis added.) Therefore, it cannot be said that § 38-175f clearly indicates that motorcycles are “motor vehicle[s] of the private passenger . . . type” to be covered by “automobile liability insurance policies.”

We find it significant that the insurance commissioner, in adopting regulations pursuant to § 38-175a, defined a “ ‘[p]rivate passenger automobile’ [to mean] the same as private passenger motor vehicle as defined in § 38-319 (g) of the general statutes.” Regs., Conn. State Agencies § 38-175a-2 (4). General Statutes (Rev. to 1983) § 38-319 (g) defines a private passenger motor vehicle as “a: (1) Private passenger type automobile, (2) station wagon type automobile, (3) camper type motor vehicle, (4) high-mileage type motor vehicle as defined in . . . section 14-1, or (5) truck type motor vehicle with a load capacity of fifteen hundred pounds or less, registered as a passenger motor vehicle as defined in. . . section 14-1, or as a passenger and commercial motor vehicle as defined in . . . section 14-1, or used for farming purposes. It does not include a motorcycle or motor vehicle used as a public or livery conveyance.” (Emphasis added.)

The insureds argue that the exclusion of motorcycles from § 38-319 (g) applies only to motorcycles used as a public or livery conveyance. We do not agree. In attempting to ascertain whether the legislature intended to exclude all motorcycles or just motorcycles used as a public or livery conveyance, we recognize that there is a presumption of purpose behind every sentence, clause or phrase, and that no word in a statute is to be treated as superfluous. Peck v. Jacquemin, supra, 60. Because a motorcycle is a motor vehicle, it would be redundant for the legislature to repeat the term “motorcycle,” if it meant to exclude only those motorcycles used as public or livery conveyances.

Moreover, in construing a statute, common sense must be used and we must assume that the legislature intended to accomplish a reasonable and rational result. Gentry v. Norwalk, 196 Conn. 596, 606, 494 A.2d 1206 (1985). We would be hard pressed to envision a situation where a motorcycle would be used as a public or livery conveyance. Therefore, we conclude that the legislature intended to exclude all motorcycles from its definition of “private passenger motor vehicle” in § 38-319 (g).

Furthermore, as we have previously stated, when terms are ambiguous or have not been defined by this court or the legislature, the terms will be given their commonly approved meaning unless a contrary intent is clearly expressed. Federal Aviation Administration v. Administrator, 196 Conn. 546, 550, 494 A.2d 564 (1985); Hinchliffe v. American Motors Corporation, 184 Conn. 607, 623, 440 A.2d 810 (1981) (Armentano, J., dissenting); Rosnick v. Aetna Casualty & Surety Co., 172 Conn. 416, 422, 374 A.2d 1076 (1977); see General Statutes § 1-1 (a). “When a statute does not define a term, it is appropriate to look to the common understanding expressed in the law and in dictionaries.” Hinchliffe v. American Motors Corporation, supra; Caldor, Inc. v. Heffernan, 183 Conn. 566, 570-71, 440 A.2d 767 (1981); Doe v. Manson, 183 Conn. 183, 186, 438 A.2d 859 (1981).

The legislature chose to define the types of vehicles covered by “automobile liability insurance policies” as “private passenger automobiles.” Webster’s Third New International Dictionary defines “automobile” as a “I-wheeled automotive vehicle designed for passenger transportation on streets and roadways and commonly propelled by an internal combustion engine using volatile fuel. . . .” (Emphasis added.) By contrast, “motorcycle” is defined as “a 2-wheeled tandem automotive vehicle having 1 or 2 riding saddles and sometimes having a 3d wheel for the support of a sidecar.” (Emphasis added.) Since the regulation passed pursuant to § 38-175a excludes motorcycles from the term “private passenger automobile” and because the common understanding of “automobile” does not encompass “motorcycle,” we conclude that the statute’s mandate of minimum provisions to be included in automobile liability policies covering “private passenger automobiles” did not apply to motorcycles.

Subsequent legislative action lends further support to our conclusion that the legislature did not intend to include motorcycle policies covering motorcycles within the ambit of “automobile liability insurance policies.” In 1985, the General Assembly enacted Public Acts 1985, No. 85-12, which amended § 38-175a as follows: “The insurance commissioner shall adopt regulations with respect to minimum provisions to be included in automobile liability insurance policies . . . covering private passenger motor vehicles, as defined in subsection (g) of 38-319, commercial motor vehicles, as defined in subdivision (9) of section 14-1, motorcycles, as defined in subdivision (29) of section 14-1 . . . .” (Emphasis added.)

The insureds contend that No. 85-12 of the 1985 Public Acts only clarified the law as it then existed, and that the sole purpose behind the amendment was to allow the insurance commissioner to provide minimum liability limits for the vehicles enumerated in the amendment. We do not agree with this interpretation.

Representative Morag L. Vance, in remarking on Public Acts 1985, No. 85-12, explained that “[t]his bill and its amendment is simply intended to give the insurance commissioner the ability to draft the amount of liability coverage that should be carried for the vehicles that are defined in the amendment. . . . What this [bill] does is it gives [the insurance commissioner] the ability to also regulate these other areas. ” (Emphasis added.) 28 H.R. Proc., Pt. 5, 1985 Sess., pp. 1575-76.

The apparent purpose of No. 85-12 of the 1985 Public Acts was, therefore, to extend to the insurance commissioner the ability to authorize regulations, including the mandatory inclusion of uninsured motorists coverages, for motorcycle policies, where no such authority existed before. By so amending the statute, the legislature further mandated that such policies include underinsured motorist coverage and that policies providing for binding arbitration also provide for the final determination of coverage issues in the arbitration proceedings.

Contrary to the insureds’ position, § 38-175a was not amended to clarify the types of vehicles “automobile liability insurance policies” covered. It is generally recognized that a statutory amendment is presumed to effect a change in the existing law; Heffernan v. Slapin, supra, 49; Reitzer v. Board of Trustees of State Colleges, 2 Conn. App. 196, 202-203, 477 A.2d 129 (1984); 1A J. Sutherland, supra, § 22.30; and that the legislature has not enacted futile or meaningless legislation. City Council v. Hall, 180 Conn. 243, 251, 429 A.2d 481 (1980). Section 38-175a was first enacted in 1967 and it provided that automobile liability policies covered private passenger automobiles. It was not until 1985 that the legislature undertook to expand the types of vehicles covered by “automobile liability insurance policies.” There is nothing in the legislative history to demonstrate that the legislature intended this act to clarify the scope of § 38-175a. Cf. State v. Blasko, 202 Conn. 541, 556-58, 522 A.2d 753 (1987); 1A J. Sutherland, supra, § 22.31. It is apparent that the legislature intended not to clarify what type of vehicles had previously been covered by § 38-175a but to expand the statute to mandate that policies covering motorcycles provide uninsured and underinsured motorist coverage.

For the above reasons, we conclude that, at the times relevant to these cases, §§ 38-175a through 38-175e did not mandate that motorcycle policies provide uninsured and underinsured motorist coverage, nor did they mandate arbitration for coverage issues in motorcycle policies providing binding arbitration provisions. Accordingly, we conclude that: (1) in Beloff v. Progressive Casualty Ins. Co., the trial court erred in granting Beloff s motions for summary judgment and to compel arbitration; (2) in Progressive Casualty Ins. Co. v. DiGangi, the Appellate Court erred in affirming the trial court’s decision granting DiGangi’s motion to dismiss; and (3) in Vogel v. Progressive Casualty Ins. Co., the trial court was correct in dismissing Vogel’s application to compel arbitration.

In Beloff, the judgment is set aside and the trial court is directed to render judgment for Progressive on Progressive’s motion for summary judgment; in DiGangi, the Appellate Court’s decision is reversed and that court is ordered to direct the trial court to render judgment on Progressive’s complaint in accordance with this opinion; and in Vogel, the trial court’s judgment is affirmed.

In this opinion the other justices concurred.

       “[General Statutes (Rev. to 1983)] Sec. 38-175a. minimum provisions in automobile LIABILITY policies, (a) The insurance commissioner shall adopt regulations with respect to minimum provisions to be included in automobile liability insurance policies issued after the effective date of such regulations and covering private passenger automobiles and commercial motor vehicles, as defined in subsection (7) of section 14-1, registered or principally garaged in this state. Such regulations shall relate to the insuring agreements, exclusions, conditions and other terms applicable to the bodily injury liability, property damage liability, medical payments and uninsured motorists coverages under such policies, shall make mandatory the inclusion of bodily injury liability, property damage liability and uninsured motorists coverages and shall include a provision that the insurer shall, upon request of the named insured, issue or arrange for the issuance of a bond which shall not exceed the aggregate limit of bodily injury coverage for the purpose of obtaining release of an attachment.
      “(b) The commissioner, before adopting such regulations or any subsequent modifications or amendments thereof, shall consult with insurers licensed to write automobile liability insurance in this state and other interested parties. Nothing contained in such regulations or in sections 38-175a to 38-175e, inclusive, shall prohibit any insurer from affording broader coverage under a policy of automobile liability insurance than that required by such regulations.
      “[General Statutes (Rev. to 1983)] Sec. 38-175b. minimum coverages. (a) Every such policy shall provide insurance in accordance with such regulations against loss resulting from the liability imposed by law, with limits not less than those specified in subsection (a) of section 14-112, for damages because of bodily injury or death of any person and injury to or destruction of property arising out of the ownership, maintenance or use of a specific motor vehicle or motor vehicles within any state, territory, or possession of the United States of America or Canada.
      “(b) Every such policy issued, renewed, amended or endorsed on or after April 8,1974, shall provide that if the provisions of the motor vehicle financial responsibility law or the motor vehicle compulsory insurance law or any similar law of any state, territory or possession of the United States of America or any Province of Canada, require insurance with respect to the operation or use of the motor vehicle in such state, territory, possession or province and such insurance requirements are greater than the insurance provided by the policy, the limits of the company’s liability and the kinds of coverage afforded by the policy shall be as set forth in such law, in lieu of the insurance otherwise provided by the policy, but only to the extent required by such law and only with respect to the operation or use of the motor vehicle in such state, territory, possession or province, provided the insurance under this subsection shall be reduced to the extent that there is other valid and collectible insurance under such policy or any other motor vehicle insurance policy. In no event shall any person be entitled to receive duplicate payments for the same element of loss.
      “[General Statutes (Rev. to 1983)] Sec. 38-175c. uninsured motorist coverage, (a) 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 or of insured and underinsured 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. 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. Such arbitration proceeding shall be conducted by a single arbitrator.
      “(b) (1) An insurance company shall be obligated to make payment to its insured up to the limits of the policy's uninsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements, but in no event shall the total amount of reeovery from all policies, including any amount recovered under the insured’s uninsured motorist coverage, exceed the limits of the insured’s uninsured motorist coverage.
      “(2) For the purposes of this section, an ‘underinsured motor vehicle’ means a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made under subdivision (1) of subsection (b) of this section.
      “[General Statutes (Rev. to 1983)] Sec. 38-175d. policies deemed to PROVIDE COVERAGE IN ACCORDANCE with regulations. Policies affording bodily injury liability, property damage liability and uninsured motorist coverages to which the provisions of sections 38-175a to 38-175e, inclusive, apply shall be deemed to provide insurance under such coverages in accordance with such regulations. Policies affording medical payments coverage to which the provisions of said sections apply shall be deemed to provide insurance under such coverage in accordance with such regulations.
      “[General Statutes (Rev. to 1983)] Sec. 38-175e. binders. Any insurer authorized to issue an automobile liability insurance policy may, pending the issue of such a policy, make an agreement, to be known as a binder, or may, in lieu of such a policy, issue a renewal endorsement or evidence of renewal of an existing policy. The provisions of sections 38-175a to 38-175e, inclusive, shall apply to such binders, renewal endorsements or evidences of renewal.”
      We recognize that General Statutes §§ 38-175a through 38-175e have subsequently been amended. For the purpose of this appeal, however, the statutes as they existed at the times relevant to these actions govern our disposition of this appeal.

       The policies also contained provisions for binding arbitration of issues involving the insured’s right to recover from third parties and the amount of that recovery.

       This policy also contained a provision for the arbitration of disputes concerning liability and damages. It did not, however, contain a provision for underinsured motorist coverage.

       The Appellate Court found no error in the trial court’s ruling, although it upheld that court’s dismissal on alternative grounds. Progressive Casualty Ins. Co. v. DiGangi, 4 Conn. App. 137, 138, 142, 492 A.2d 548 (1985).

       Vogel also had an automobile policy issued by the Hartford Casualty Insurance Company, which provided uninsured motorist coverage in the amount of $50,000.

       General Statutes § 38-175c (a) provides, in pertinent part, that every automobile liability insurance policy containing a provision for binding arbitration “shall include a provision for final determination of insurance coverage in such arbitration proceeding.”

       “[General Statutes (Rev. to 1983)] Sec. 14-1. definitions. ... (7) ‘Commercial motor vehicle’ includes any vehicle designed or used for the transportation of merchandise or freight or employees of the registrant.” Section 14-1 (7) is now § 14-1 (9).

       “[General Statutes (Rev. to 1983)] Sec. 14-1. definitions. . . . (35) ‘Passenger motor vehicle’ means a motor vehicle having a capacity of carrying not more than ten passengers, designed and used for the purpose of transporting persons with their necessary personal belongings.” Section 14-1 (35) is now § 14-1 (40).

       “[General Statutes (Rev. to 1983)] Sec, 14-1. definitions. . , . (25) ‘Motorcycle’ means a motor vehicle having not more than three wheels in contact with the ground and a saddle or seat on which the rider sits or a platform on which he stands, and with or without a side car, except any vehicle in which the driver’s seat is completely or partially enclosed and the motor on such vehicle is not within such enclosed area, and shall include bicycles having a motor attached, except bicycles propelled by means of a helper motor as defined in section 14-286.” Section 14-1 (25) is now § 14-1 (29).

       “[General Statutes (Rev. to 1983)] Sec. 38-319. definitions. . . . (g) ‘Private passenger motor vehicle’ means a: (1) Private passenger type automobile, (2) station wagon type automobile, (3) camper type motor vehicle, (4) high-mileage type motor vehicle as defined in . . . section 14-1, or (5) truck type motor vehicle with a load capacity of fifteen hundred pounds or less, registered as a passenger motor vehicle as defined in . . . section 14-1, or as a passenger and commercial motor vehicle as defined in . . . section 14-1, or used for farming purposes. It does not include a motorcycle or motor vehicle used as a public or livery conveyance.”

       Public Acts 1985, No. 85-12, provides: “An act concerning minimum provisions for motor vehicle liability policies.
      “Subsection (a) of section 38-175a of the general statutes is repealed and the following is substituted in lieu thereof:
      “(a) The insurance commissioner shall adopt regulations with respect to minimum provisions to be included in automobile liability insurance policies issued after the effective date of such regulations and covering private passenger [automobiles and] MOTOR VEHICLES, AS DEFINED IN SUBSECTION (g) OF SECTION 38-319, commercial motor vehicles, as defined in SUBDIVISION (9) OF section 14-1, MOTORCYCLES, AS DEFINED IN SUBDIVISION (29) OF SECTION 14-1, PUBLIC SERVICE MOTOR VEHICLES, AS DEFINED IN SUBDIVISION (44) OF SECTION 14-1, MOTOR VEHICLES IN LIVERY SERVICE, AS DEFINED IN SECTION 13b-101, AND VANPOOL VEHICLES, AS DEFINED IN SUBDIVISION (63) OF SECTION 14-1, registered or principally garaged in this state. Such regulations shall relate to the insuring agreements, exclusions, conditions and other terms applicable to the bodily injury liability, property damage liability, medical payments and uninsured motorists coverages under such policies, shall make mandatory the inclusion of bodily injury liability, property damage liability and uninsured motorists coverages and shall include a provision that the insurer shall, upon request of the named insured, issue or arrange for the issuance of a bond which shall not exceed the aggregate limit of bodily injury coverage for the purpose of obtaining release of an attachment.

       DiGangi and Vogel argue that even if General Statutes § 38-175a was not applicable to motorcycle insurance policies, Progressive is nonetheless obligated to pay underinsured motorist benefits, by virtue of General Statutes § 38-175c (b) (1), which provides: “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.”
      Because we find that motorcycle policies were not governed by General Statutes §§ 38-175a through 38-175e, we find that the mandates of § 38-175c (b) (1) are inapplicable to this case.