author: NORCOTT, J.

text:
    BARBARA EDELSTEIN v. DEPARTMENT OF PUBLIC HEALTH AND ADDICTION SERVICES
    (15390)
    Callahan, C. J., and Berdon, Norcott, McDonald and Peters, Js.
    Argued December 10, 1996
    officially released April 29, 1997

      Steven L. Seligman, for the appellant (plaintiff).

      Peter L. Brown, assistant attorney general, with whom were Karen H. Fritzinger, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Richard J. Lynch, assistant attorney general, for the appellee (defendant).
   Opinion

NORCOTT, J.

This appeal involves the interpretation of the physician-patient privilege statute, General Statutes § 52-146o. The principal issues raised by this appeal are: (1) whether § 52-146o applies to medical records containing patient communications made before the effective date of the statute; and (2) if so, whether these records fall within the exception contained in § 52-146o (b) (3) for the disclosure of communications to a state agency in connection with its investigation of a licensed physician. The trial court ruled that the statute did not apply to the records at issue and, accordingly, ordered that the records be disclosed. We affirm the judgment of the trial court, albeit for different reasons.

The plaintiff, Barbara Edelstein, is a physician under investigation by the defendant, the department of public health and addiction services (department), for allegedly improper billing practices. The department is authorized by statute to investigate complaints against licensed physicians. See General Statutes § 19a-14 (a) (10). In 1991, the department received a complaint from a health insurer, Blue Cross/Blue Shield of Connecticut (Blue Cross), alleging that the plaintiff had submitted several claims for reimbursement for services that she had not rendered. The complaint also alleged that the plaintiff had wrongfully caused Blue Cross to reimburse her for services that the insurance policy did not cover.

On June 5, 1995, in connection with its investigation of the plaintiffs billing practices, the department served the plaintiff with a subpoena duces tecum pursuant to its subpoena power under General Statutes § 19a-14 (a) (10). The subpoena sought the production of the medical records of approximately thirty patients who had been treated by the plaintiff from 1987 through 1989. On June 6, 1995, the plaintiff filed an application to quash the subpoena, claiming that these records were privileged under § 52-146o and that none of her patients had consented to the disclosure of their records. On October 10, 1995, the trial court granted the plaintiff’s motion.

On November 2, 1995, the department filed a motion to open the trial court’s judgment. In support of its motion, the department relied on a recently decided Superior Court case, Rosado v. Bridgeport Roman Catholic Diocesan Corp., Superior Court, judicial district of Fairfield, Docket No. 93302072 (June 2, 1995) (14 Conn. L. Rptr. 392, 397), which held that § 52-146o does not apply to communications made before October 1, 1990, the effective date of the statute. The trial court agreed with Rosado, and concluded that the medical records at issue in the present case were not privileged because they contained communications made before the effective date of the statute. The trial court consequently granted the department’s motion and denied the plaintiffs application to quash the subpoena. The plaintiff appealed to the Appellate Court from the judgment of the trial court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

On appeal, the plaintiff claims that § 52-146o prohibits her from disclosing records containing any patient communications, regardless of when such communications were made, without patient consent. The department responds that the records in question are not privileged because they contain communications made before the statute’s effective date. In the alternative, the department argues that if § 52-146o does apply to these records, then they fall within the statute’s exception for the disclosure of communications to the department in connection with an investigation of a complaint against a licensed physician. Although we agree with the plaintiff that § 52-146o does apply to these records, we conclude that the records fall within the statute’s exception for the disclosure of communications to the department pursuant to an investigation.

I

We begin with the evolution of the physician-patient privilege in Connecticut. A common law privilege for communications made by a patient to a physician has never been recognized in this state. State v. Rollinson, 203 Conn. 641, 657, 526 A.2d 1283 (1987); State v. Hanna, 150 Conn. 457, 464, 191 A.2d 124 (1963); State v. Reid, 146 Conn. 227, 231, 149 A.2d 698 (1959); Zeiner v. Zeiner, 120 Conn. 161, 167, 179 A. 644 (1935); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 12.8.1, p. 455. Although the plaintiff argues that these cases were wrongly decided and urges us to recognize a common law privilege for communications between a patient and a physician, we decline to do so in light of precedent and the legislature’s subsequent action on this issue.

In 1990, the legislature created a broad physician-patient privilege when it enacted Public Acts 1990, No. 90-177, codified at § 52-146o. See C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988 & Sup. 1995) § 12.8.1, p. 455. General Statutes (Rev. to 1991) § 52-146o (a) provides that a physician “shall not disclose . . . any communication made to him by . . .a patient . . . unless the patient or his authorized representative explicitly consents to such disclosure.” The purpose of the act is to protect the confidentiality of communications between a physician and a patient. See, e.g., 33 H.R. Proc., Pt. 14,1990 Sess., p. 4860, remarks of Senator Richard D. Tulisano (“the bill is designed to insure that a patient/doctor confidentiality is maintained”). The act became effective on October 1, 1990. See General Statutes § 2-32.

As originally enacted in 1990, § 52-146o contained an exception for the disclosure of communications “pursuant to any statute or regulation of any state agency . . . .” General Statutes (Rev. to 1991) § 52-146o (b). Prior to the enactment of this statute, the department had been able to obtain medical records relating to an investigation of a licensed physician pursuant to its subpoena power under § 19a-14 (a) (10). After the enactment of § 52-146o, however, there was confusion as to whether the new statutory privilege overrode the department’s authority under § 19a-14 (a) (10) to subpoena medical records containing otherwise privileged communications, or whether the department’s authority continued to be recognized under the exception contained in § 52-146o (b) for the disclosure of communications pursuant to any statute or regulation of a state agency. See 39 S. Proc., Pt. 5, 1996 Sess., p. 1699, remarks of Senator George L. Gunther (referring to Superior Court case that called into question department’s authority to obtain access to potentially privileged medical records in connection with investigation of physician).

In 1996, the legislature amended § 52-146o by enacting Public Acts 1996, No. 96-47, § 13, codified at § 52-146o (b) (3). The 1996 amendment provides an additional exception to the physician-patient privilege for the disclosure of communications “to the Commissioner of Public Health for records of a patient of a physician ... in connection with an investigation of a complaint, if such records are related to the complaint . . . .” General Statutes § 52-146o (b) (3). That amendment became effective on October 1, 1996. See Public Acts 1996, No. 96-47, § 13.

II

The medical records at issue in the present case contain communications made by the plaintiff’s patients from 1987 through 1989, prior to the effective date of § 52-146o. The department sought disclosure of these records in 1995, subsequent to the effective date of § 52-146o, but prior to the effective date of the 1996 amendment. In deciding whether these medical records must be disclosed, we must determine whether the statute applies to these records and, if so, whether the exception contained in the 1996 amendment permits the disclosure of these records to the department in connection with its investigation of the plaintiff.

A

In determining whether § 52-146o applies to the records at issue, we are guided by well defined principles of statutory interpretation. “Our fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Citations omitted; internal quotation marks omitted.) State v. Metz, 230 Conn. 400, 409, 645 A.2d 965 (1994).

We begin with the language of the statute. Under § 52-146o (a), “a physician . . . shall not disclose . . . any communication made to him by . . .a patient . . . unless the patient . . . explicitly consents to such disclosure.” (Emphasis added.) Although the statute uses the past participle, “made,” to describe the communications, it does not use an auxiliary verb before the past participle to indicate the timing of the communications. As a result, it is unclear whether the statute applies to communications made before the statute’s effective date, or only to those communications made after that date. Cf. Schieffelin & Co. v. Dept. of Liquor Control, 194 Conn. 165, 174-75, 479 A.2d 1191 (1984) (use of present perfect tense, “has had,” to describe when distributorships come into existence indicates that act was intended to apply to distributorships in existence at time of act’s passage, as well as newly created distributorships); Everett v. Ingraham, 150 Conn. 153, 156-57, 186 A.2d 798 (1962) (use of future perfect tense, “shall have been made,” to describe when compensation awards are made indicates that act was intended to apply only to cases where compensation awards were made after effective date of act).

In ascertaining the meaning of this ambiguous language, we find guidance in this court’s interpretation of similar language in State v. Magnano, 204 Conn. 259, 528 A.2d 760 (1987). Magnano involved the application of General Statutes § 52-146k, which creates a privilege for communications made between a victim and a battered women’s shelter counselor, to communications made before the statute’s effective date. State v. Magnano, supra, 274. As originally enacted in 1983, § 52-146k provided: “A battered women’s counselor . . . shall not disclose any confidential communications made to such counselor by a victim . . . unless the victim . . . waives the privilege . . . .” General Statutes (Rev. to 1985) § 52-146k (b). In response to a Superior Court decision that held that communications made before the statute’s effective date were not privileged, the legislature amended § 52-146k in 1985. See Public Acts 1985, No. 85-112; State v. Magnano, supra, 284. The 1985 amendment provided: “On or after October 1, 1983, [a] battered women’s counselor . . . shall not disclose any confidential communications made to such counselor at any time by a victim . . . unless the victim . . . waives the privilege . . . .” Public Acts 1985, No. 85-112. In State v. Magnano, supra, 284, this court concluded that the 1985 amendment clarified the legislature’s original intent that § 52-146k applies to communications made before, as well as after, the statute’s effective date.

The purpose and language of the physician-patient privilege statute, § 52-146o, is similar to that of the counselor-victim privilege statute, § 52-146k, as originally enacted. The purpose of both statutes is to protect the confidentiality of communications in order to foster the free exchange of information from patient to physician, or from victim to counselor. See 1 C. McCormick, Evidence (4th Ed. 1992) § 98, pp. 368-69 (purpose of physician-patient privilege); see also In re Robert H., 199 Conn. 693, 706, 509 A.2d 475 (1986) (purpose of battered women’s counselor-victim privilege). Both statutes use the past participle of “make” to describe the timing of the communications — communications “made” by a patient or victim. It is reasonable to assume that the legislature, having made clear that this language in § 52-146k applies to communications made before as well as after that statute’s effective date, has signaled its intention with respect to the meaning of the nearly identical language of § 52-146o. It would be irrational for us to adopt the interpretation urged by the plaintiff, so as to require the legislature to step in again and clarify its original intention as to this language, as it did with § 52-146k. We conclude, therefore, that § 52-146o applies to communications made before, as well as after, the statute’s effective date. Therefore, the medical records at issue in the present case are protected by the physician-patient privilege.

B

We turn next to the question of whether the records in this case fall within the exception contained in § 52-146o (b) (3) for the disclosure of communications to the department in connection with an investigation of a complaint against a licensed physician. Because this exception was not expressly enacted until 1996, while the present case was on appeal, we must determine whether the legislature intended the amendment to clarify its earlier intention.

“In determining the effect of a subsequent statutory amendment on earlier legislation, we are guided by well defined principles of statutory interpretation. We recognize the usual presumption that, in enacting a statute, the legislature intended a change in existing law. . . . This presumption, however, like any other, may be rebutted by contrary evidence of the legislative intent in the particular case. ... In determining the intended effect of a later enactment on earlier legislation, two questions must be asked. First, was the act intended to clarify existing law or to change it? Second, if the act was intended to make a change, was the change intended to operate retroactively?” (Citations omitted; internal quotation marks omitted.) State v. Magnano, supra, 204 Conn. 277.

“To determine whether an act should be characterized as clarifying legislation, we look to the legislative history to determine the legislative intent.” Reliance Ins. Co. v. American Casualty Ins. Co. of Reading, Pennsylvania, 238 Conn. 285, 290, 679 A.2d 925 (1996); see also State v. Magnano, supra, 204 Conn. 278; State v. Blasko, 202 Conn. 541, 558, 522 A.2d 753 (1987). In examining the legislative history of the 1996 amendment, we find several indications that the legislature intended the amendment to clarify the original intent of § 52-146o that the department may obtain access to medical records containing otherwise privileged communications when such records are related to its investigation of a complaint against a physician.

Senator George L. Gunther, cochairman of the committee on public health, specifically stated that the intent of the amendment was to clarify existing law. During debate in the state Senate, Senator Gunther explained: “This whole bill is supported by the Department [of Public Health], and the need to clarify the present language in the law, which allows for the exploration of a complaint, but it does not . . . get into violating of the patient’s confidentiality.” (Emphasis added.) 39 S. Proc., supra, pp. 1700-1701. Furthermore, Senator Gunther acknowledged the existing authority of the department to seek access to otherwise confidential medical records pursuant to its subpoena power. See id., p. 1700, remarks of Senator George L. Gunther (“[t]he Department [of Public Health] still retains the right to defend its need for [a] patient’s medical and psychiatric records by obtaining a subpoena, if such records are necessary for the investigation of a complaint”).

Furthermore, the legislation was passed, at least in part, in response to controversy over the interplay between! 52-146oand! 19a-14 (a) (10), which had been brought to light by a Superior Court decision. Senator Gunther stated: “[T]he bill expressly authorizes physicians and other licensed health care providers to release [patient] records to the Department of [Public] Health as part of an investigation o[f] a complaint. Actually as a recent Superior Court decision cast some question as to whether that could be done or not.” Id., p. 1699. The 1996 amendment, therefore, appears to be “a classic reaction to a judicial inteipretation that was deemed inappropriate.” State v. Magnano, supra, 204 Conn. 283. “ ‘Once litigation brought that ambiguity to light, the legislature acted to remove any doubt about its earlier intentions.’ ” Id. The legislature’s action in 1996 implicates the principle of statutory construction that “[i]f the amendment was enacted soon after controversies arose as to the interpretation of the original act, it is logical to regard the amendment as a legislative interpretation of the original act.” (Internal quotation marks omitted.) Id., 283-84; see also Reliance Ins. Co. v. American Casualty Ins. Co. of Reading, Pennsylvania, supra, 238 Conn. 289; State v. Blasko, supra, 202 Conn. 558; 1 A J. Sutherland, Statutory Construction (5th Ed. Singer 1992) § 22.31, p. 278.

This legislative history persuades us that the 1996 amendment was intended to be clarifying legislation. In light of our conclusion that the amendment was intended to clarify, rather than to change, existing law, we need not consider whether the change was to have retroactive effect. See State v. Magnano, supra, 204 Conn. 284. “Where an amendment is intended to clarify the original intent of an earlier statute, it necessarily has retroactive effect.” Id. “A clarifying act ‘in effect construes and clarifies a prior statute [and] must be accepted as the legislative declaration of the meaning of the original act.’ ” State v. Nixon, 231 Conn. 545, 560-61, 651 A.2d 1264 (1995); see also Reliance Ins. Co. v. American Casualty Ins. Co. of Reading, Pennsylvania, supra, 238 Conn. 289; State v. Blasko, supra, 202 Conn. 558; Neyland v. Board of Education, 195 Conn. 174, 180, 487 A.2d 181 (1985).

We conclude that the 1996 amendment must be accepted as a declaration of the legislature’s original intent that the department may obtain access to medical records containing otherwise privileged communications when such access is sought in connection with the investigation of a complaint against a physician, and when the records are related to that complaint. Therefore, the exception contained in § 52-146o (b) (3) applies to the medical records sought in the present case and requires that the plaintiff disclose these records to the department.

We note that the exception contained in § 52-146o (b) (3) is a narrow one. It applies only to those records related to the complaint that is under investigation. It does not give the department access to unrelated records or records beyond the scope of the complaint against the physician. As Senator Gunther explicitly stated: “It is not the intent of this Amendment to allow unchecked access to private, personal medical records unrelated to a complaint filed against the provider. The Department [of Public Health] would not be allowed to use this privilege as a gate way to other unrelated patient and provider records. This Amendment would not allow the Department of [Public] Health access to other patients’ records, not specifically related to the complaint filed, nor would the Department be allowed access to the patient’s records that fall beyond the scope of the complaint filed.” 39 S. Proc., supra, p. 1700. In enacting § 52-146o (b) (3), the legislature strove to find the appropriate balance between protecting the confidentiality of patient communications and protecting public health by authorizing the department to obtain medical records needed in the investigation of complaints against licensed physicians.

We conclude, therefore, that the trial court properly denied the plaintiffs motion to quash the subpoena.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 52-146o provides: “Disclosure of patient communication or information by physician, surgeon or health care provider prohibited, (a) Except as provided in sections 52-146c to 52-146j, inclusive, and subsection (b) of this section, in any civil action or any proceeding preliminary thereto or in any probate, legislative or administrative proceeding, a physician or surgeon, as defined in subsection (b) of section 20-7b, shall not disclose (1) any communication made to him by, or any information obtained by him from, a patient or the conservator or guardian of a patient with respect to any actual or supposed physical or mental disease or disorder or (2) any information obtained by personal examination of a patient, unless the patient or his authorized representative explicitly consents to such disclosure.
      “(b) Consent of the patient or his authorized representative shall not be required for the disclosure of such communication or information (1) pursuant to any statute or regulation of any state agency or the rules of court, (2) by a physician, surgeon or other licensed health care provider against whom a claim has been made, or there is a reasonable belief will be made, in such action or proceeding, to his attorney or professional liability insurer or such insurer’s agent for use in the defense of such action or proceeding, (3) to the Commissioner of Public. Health for records of a patient of a physician, surgeon or health care provider in connection with an investigation of a complaint, if such records are related to the complaint, or (4) if child abuse, abuse of an elderly individual, abuse of an individual who is physically disabled or incompetent or abuse of an individual with mental retardation is known or in good faith suspected."

       The department is now known as the department of public health.

       General Statutes § 19a-14 provides in relevant part: “Powers of department concerning regulated professions, (a) The Department of Public Health shall have the following powers and duties with regard to the boards and commissions listed in subsection (b) which are within the Department of Public Health. The department shall . . .
      “(10) Conduct any necessary review, inspection or investigation regarding qualifications of applicants for licenses or certificates, possible violations of statutes or regulations, and disciplinary matters. In connection with any investigation, the Commissioner of Public Health or said commissioner’s authorized agent may administer oaths, issue subpoenas, compel testimony and order the production of books, records and documents. If any person refuses to appear, to testily or to produce any book, record or document when so ordered, a judge of the Superior Court may make such order as may be appropriate to aid in the enforcement of this section . . . .”

         Blue Cross is not a party to the present action.

       On August 3, 1995, the department served the plaintiff with a second subpoena duces tecum seeking the production of medical records of an additional forty-three patients who had been treated during the same time period. The plaintiffs motion to quash the second subpoena is still pending in the trial court.

       General Statutes § 2-32 provides: "Effective date of public and special acts. All public acts, except when otherwise therein specified, shall take effect on the first day of October following the session of the General Assembly at which they are passed, and special acts, unless otherwise therein provided, from the date of their approval.”

       General Statutes § 52-146k provides in relevant part: “Privileged communications between battered women’s or sexual assault counselor and victim. . . .
      “(b) On or after October 1,1983, a battered women’s counselor or a sexual assault counselor shall not disclose any confidential communications made to such counselor at any time by a victim in any civil or criminal case or proceeding or in any legislative or administrative proceeding unless the victim making the confidential communications waives the privilege, provided under no circumstances shall the location of the battered women’s center or rape crisis center or the identity of the battered women’s counselor or sexual assault counselor be disclosed in any civil or criminal proceeding. Any request made on or after October 1,1983, by the defendant or the state for such confidential communications shall be subject to the provisions of this subsection. ...”

       Furthermore, if a physician refuses to produce potentially privileged records that have been subpoenaed by the department, the trial court is authorized pursuant to § 19a-14 (a) (10) to fashion an order “as may be appropriate” to aid in the department’s investigation. We note that there is nothing in that statute prohibiting the trial court from fashioning an order that not only addresses the department’s needs, but also respects the confidential nature of such records.


source: Caselaw Access Project

author: KATZ, J. BERDON, J.,

license: Public Domain

text:
    JOHN DOE v. STATEWIDE GRIEVANCE COMMITTEE
    (15533)
    Borden, Berdon, Katz, Palmer and Peters, Js.
    Argued February 19
    officially released May 6, 1997

      Darlene F. Reynolds, assistant bar counsel, with whom was Elizabeth F. Collins, first assistant bar counsel, for the appellant (defendant).

      James A. Wade, with whom were Craig A. Raabe and, on the brief, Dina S. Fisher, for the appellee (plaintiff).
   Opinion

KATZ, J.

The sole issue in this certified appeal is whether the failure by the defendant, the statewide grievance committee (committee), to comply with the temporal requirements of General Statutes (Rev. to 1993) § 51-90g (g) and Practice Book § 27J (i), deprives the defendant of subject matter jurisdiction to act on a grievance complaint alleging attorney misconduct and, further, deprives the court of subject matter jurisdiction to exercise its inherent authority over attorney conduct. We conclude that it does not.

In June, 1993, misconduct charges against the plaintiff were brought to the attention of the committee. When the committee failed to act within the statutory period, the plaintiff brought this action for injunctive relief in the Superior Court. Determining that the committee’s failure to render a decision on a grievance complaint within the prescribed time period was not cause to dismiss the complaint, the trial court rendered judgment denying the plaintiffs request 1’or a permanent injunction against any further action by the committee. The Appellate Court reversed the judgment of the trial court, concluding that the committee’s failure to comply with the statutory time period required dismissal of the underlying complaint. Doe v. Statewide Grievance Committee, 41 Conn. App. 671, 677 A.2d 960 (1996). We granted the defendant’s petition for certification to appeal, limited to the following issue: “Did the Appellate Court properly conclude the failure of the statewide grievance committee to comply with the timing requirements of General Statutes § 51-90g (g) and Practice Book § 27J (i) deprives the court of subject matter jurisdiction over a complaint for attorney misconduct?” Doe v. Statewide Grievance Committee, 239 Conn. 905, 682 A.2d 999 (1996). We reverse the judgment of the Appellate Court.

As the Appellate Court stated, “[t]here is no dispute about the essential facts. The plaintiff, referred to anonymously in his verified complaint as John Doe, is an attorney licensed to practice law in the state of Connecticut. On June 18,1993, the grievance panel of the judicial district of New Haven, geographical area number six (local grievance panel), commenced grievance proceedings against the plaintiff by filing a complaint with the committee. On August 31, 1993, the local grievance panel determined that there was insufficient evidence to support a finding of probable cause that the plaintiff was guilty of misconduct. The local grievance panel filed its determination of no probable cause with the committee on September 2, 1993.

“On December 16, 1993, the committee informed the plaintiff that, contrary to the determination of the local grievance panel, there was sufficient probable cause to hold a hearing to determine whether the plaintiff was guilty of misconduct. The committee took no further action until February 8,1994, when it assigned the matter to a subcommittee and scheduled a March 9, 1994 healing. As of February 8, 1994, more than 120 days had elapsed since the local grievance panel filed its determination of no probable cause. On March 9, 1994, the plaintiff appeared before the subcommittee and filed a motion to dismiss the grievance proceedings on jurisdictional grounds. The subcommittee denied the plaintiffs motion. Thereafter, on March 10, 1994, the plaintiff filed a motion to dismiss the grievance proceedings with the committee based on the same jurisdictional grounds. The committee denied the plaintiffs motion.

“The plaintiff commenced this action seeking to enjoin the committee from taking any further action on the underlying grievance complaint. The plaintiffs complaint alleges that the committee is without jurisdiction to take further action in this matter and its failure to render a decision within the statutory time period deprived the plaintiff of his due process rights. On October 25, 1994, the trial court rendered judgment denying the plaintiffs request for a permanent injunction.” Doe v. Statewide Grievance Committee, supra, 41 Conn. App. 672-73.

On appeal, the Appellate Court, principally relying upon this court’s decision in Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 558 A.2d 986 (1989), concluded that the legislature, with the acquiescence of the judicial branch as demonstrated by Practice Book § 27J, intended § 51-90g (g) to preclude the trial court from exercising its inherent authority over attorney conduct in cases in which the committee has failed to comply with the time limitations. Doe v. Statewide Grievance Committee, supra, 41 Conn. App. 678. The Appellate Court’s conclusion was based upon its determinations that § 51-90g (g) is mandatory in nature and contains no language similar to that in § 51-90g (c) — the provision at issue in Rozbicki — authorizing the committee to take discretionary action in the event of a delay. Although we agree that this case is necessarily influenced by Rozbicki, we conclude that there is no legislative intent that the failure to comply with the timing requirements of § 51-90g (g) should deprive either the defendant or the court of subject matter jurisdiction.

We begin with this court’s decision in Statewide Grievance Committee v. Rozbicki, supra, 211 Conn. 232, wherein we held that the defendant’s failure to act within the time constraints of General Statutes (Rev. to 1987) § 51-90g (c), did not require dismissal of the complaint absent a showing of prejudice. Our decision was premised largely upon the broad supervisory role of the judiciary in governing attorney conduct. We emphasized that “the rules regulating attorney grievance procedures exist within the broader framework of the relationship between attorneys and the judiciary. The practice of law is ... a profession the main purpose of which is to aid in the doing of justice .... An attorney as an officer of the court in the administration of justice, is continually accountable to it for the manner in which he exercises the privilege which has been accorded him. . . . This unique position as officers and commissioners of the court . . . casts attorneys in a special relationship with the judiciary and subjects them to its discipline.” (Citations omitted; internal quotation marks omitted.) Id., 237-38.

We further stated that “[bjecause of this special relationship, [w]e have a continuing duty to make it entirely clear that the standards of conduct ... of the members of the profession of the law in Connecticut have not changed, and that those standards will be applied under our rules of law, in the exercise of a reasonable discretion . . . [and t]his court will neither neglect nor attempt to avoid that responsibility.” (Citations omitted; internal quotation marks omitted.) Id., 238.

Consequently, our review of § 51-90g (c) was “informed by the judiciary’s responsibility for governing attorney conduct. Disciplinary proceedings are for the purpose of preserving the courts from the official ministration of persons unfit to practise in them. . . . The proceeding to disbar [or suspend] an attorney is neither a civil action nor a criminal proceeding, but is aproceed-ing sui generis, the object of which is not the punishment of the offender, but the protection of the court. . . . Once the complaint is made, the court controls the situation and procedure, in its discretion, as the interests of justice may seem to it to require. . . . [T]he power of the courts is left unfettered to act as situations, as they may arise, may seem to require, for efficient discipline of misconduct and the purging of the bar from the taint of unfit membership. Such statutes as ours are not restrictive of the inherent powers which reside in courts to inquire into the conduct of their own officers, and to discipline them for misconduct. . . . In proceedings such as those at issue, therefore, the attorney’s relations to the tribunal and the character and purpose of the inquiry are such that unless it clearly appears that his rights have in some substantial way been denied him, the action of the court will not be set aside upon review. . . . Consequently, ministerial delays do not ordinarily warrant judicial abstention from dealing with the important issues raised by allegations of attorney misconduct.

“The regulation of attorney conduct is, therefore, within the court’s inherent authority. Section 51-90g and the parallel Practice Book rules authorized the grievance committee to act as an arm of the court in fulfilling this responsibility. Requiring the grievance committee to dismiss a complaint whenever the . . . subcommittee has failed to act in a timely manner, with no discretion to pursue another course of action if appropriate, would frustrate the purposes of attorney grievance procedures and run counter to the special supervisory role of the courts in regulating attorney conduct. We will, therefore, require such action only if specifically so directed by § 51-90g (c).” (Citations omitted; internal quotation marks omitted.) Id., 238-39.

In Rozbicki, we thereafter examined § 51-90g (c) in order to decide whether its time requirements were mandatory and, if so, whether the statutory mandates had been violated and what effect such a violation has on the jurisdiction of the Superior Court. We held that the provision’s use of the word “shall” was mandatory, but concluded nevertheless that its violation did not require a dismissal of the complaint. “Both the broader context of the supervisory role of the judiciary in governing attorney conduct, as discussed above, and the language of § 51-90g (c) support the conclusion that the trial court’s jurisdiction was not affected by the delay. The operative language on which we focus is . . . the [final] phrase of § 51-90g (c) requiring the grievance committee after subcommittee delay to ‘determine the appropriate course of action.’ . . . We will not, therefore, construe § 51-90g (c) to require that if the subcommittee has failed to act within the prescribed time, and there is no showing of prejudice, the complaint must be dismissed. Such a construction would impermissibly render the final phrase in § 51-90g (c) a nullity.” (Citations omitted; internal quotation marks omitted.) Id., 242-43. Accordingly, we concluded that the subcommittee’s failure to act within the prescribed time, although a violation of § 51-90g (c), did not mandate dismissal of the complaint.

We agree with the Appellate Court that the issue in this case is informed by Rozbicki. We also conclude, however, that it would be inconsistent with the concerns expressed in Rozbicki regarding the supervisory role of the court, and the purposes of attorney grievance procedures, to interpret § 51-90g (g) in such a way as to decide this case based solely upon the omission of the discretionary language contained in § 51-90g (c). Rather, in light of those concerns, we conclude that the time limits in issue are directory, and that in the absence of any language expressly denying the committee the authority to review alleged attorney misconduct and stripping the court of its subject matter jurisdiction over attorney misconduct due to the committee’s failure to comply with the time requirements of § 51-90g (g), the legislature did not intend such a result.

“Well established principles of statutory construction govern our determination of whether a statutory time period is mandatory or directory. Our fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience. . . . If it is a matter of substance, the statutory provision is mandatory. If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words.” (Citations omitted; internal quotation marks omitted.) Stewart v. Tunxis Service Center, 237 Conn. 71, 76-77, 676 A.2d 819 (1996).

Looking solely at the words of § 51-90g (g), it would appear that the language requires that the committee “render its decision not later than four months from the date of the panel’s determination of probable cause or no probable cause was filed with the state-wide grievance committee.” Definitive words, such as “must” or “shall,” ordinarily express legislative mandates of anon-directory nature. State v. Metz, 230 Conn. 400, 410, 645 A.2d 965 (1994); Lo Sacco v. Young, 210 Conn. 503, 507, 555 A.2d 986 (1989); Caulkins v. Petrillo, 200 Conn. 713, 717, 513 A.2d 43 (1986); Sullivan v. Liberty Mutual Fire Ins. Co., 174 Conn. 229, 233, 384 A.2d 384 (1978). “We have noted, however, that the use of the word ‘shall,’ though significant, does not invariably establish a mandatory duty. Hall Manor Owner’s Assn. v. West Haven, 212 Conn. 147, 152, 561 A.2d 1373 (1989); see, e.g., Fidelity Trust Co. v. BVD Associates, 196 Conn. 270, 278, 492 A.2d 180 (1985).” Angelsea Productions, Inc. v. Commission on Human Rights & Opportunities, 236 Conn. 681, 690, 674 A.2d 1300 (1996). Therefore, we turn to the other aforementioned considerations in deciding whether § 51-90g (g) is directory or mandatory.

“One . . . reliable guide in determining whether a statutory provision is directory or mandatory is whether the failure of the state to comply with its provisions results in either a penalty or a requirement that the state seek an extension of time. Caron v. Inland Wetlands & Watercourses Commission, 222 Conn. 269, 273-74, 610 A.2d 584 (1992); State v. White, 169 Conn. 223, 238, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S. Ct. 469, 46 L. Ed. 2d 399 (1975).” Angelsea Productions, Inc. v. Commission on Human Rights & Opportunities, supra, 236 Conn. 695. It is noteworthy that the legislature elected not to include either option in the language of § 51-90g (g).

Another guide to interpreting subsection (g) of § 51-90g is to look to other provisions governing the powers and duties of the committee. See Murchison v. Civil Service Commission, 234 Conn. 35, 45, 660 A.2d 850 (1995) (“[i]n order to determine the meaning of a statute, we must consider the statute as a whole when reconciling its separate parts in order to render a reasonable overall interpretation”); University of Connecticut Chapter, AAUP v. Governor, 200 Conn. 386, 399, 512 A.2d 152 (1986) (statute to be read “as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation”). As we held in Statewide Grievance Committee v. Rozbicki, supra, 211 Conn. 239, the failure to comply with the time constraints of § 51-90g (c) does not deprive the court of jurisdiction. Therefore, were we to agree with the plaintiffs interpretation of § 51-90g (g), we would in essence be stating that the committee, in cases in which the subcommittee conducts the hearing, would, after 120 days, have more power in its review of subcommittee delay to assess appropriate action than the Superior Court, in those cases in which the committee has failed, after essentially the same period of time, to assign the complaint for a hearing, would have over such committee delay. Such a pronounced dichotomy between, on the one hand, allowing the committee authority to review delay, and, on the other hand, denying the court any authority to review delay would be problematic at best. We should not construe statutory language to mandate such a curious result.

Additionally, we note that General Statutes § 51-90h (b) provides that within sixty days after the fourteen day period for the filing of statements in support of or in opposition to the subcommittee’s proposed decision, the committee is required to issue a decision. That same subsection also provides, however, that the committee may instead refer the complaint to the same or a different subcommittee for further investigation and a proposed decision, in which event there are no additional time constraints imposed. To interpret § 51-90g (g) as mandatory and as imposing a jurisdictional constraint, when neither § 51-90g (c) nor § 51-90h have time constraints that have jurisdictional implications, would be inconsistent and indeed unreasonable. Because we read statutes “ ‘with common sense so as to accomplish a reasonable result’ State v. Chiarizio, 8 Conn. App. 673, 682, 514 A.2d 370, cert. denied, 201 Conn. 809, 515 A.2d 379 (1986); we are inclined, in the face of these other provisions, to reject the plaintiffs invitation to interpret § 51-90g (g) as mandatory in nature and as establishing a jurisdictional constraint.

This inclination is buttressed by the legislative history relative to § 51-90g (g). That history indicates that the revision of attorney discipline procedures in 1986 was influenced by a concern for the public and for expediency in the disciplinary process for the benefit of the public as well as for those facing charges. See Doe v. Statewide Grievance Committee, supra, 41 Conn. App. 683 (Schaller, J., concurring). It does not, however, reflect an intent to limit judicial branch involvement over attorney grievance complaints. Indeed, not only is there no indication of an intent to limit the jurisdiction of the court, but, to the contrary, the legislators expressed deference to the judiciary. See 28 H.R. Proc., Pt. 23, 1985 Sess., pp. 8538-45, 8547-48, 8554-55. Indeed, the legislature in the primary debate recognized that the court is “the ultimate authority as to attorneys, in how they are disciplined.” Id., p. 8542, remarks of Representative Richard T. Tulisano. The debate in the House of Representatives reflects concern with judicial independence and the rule-making authority of the court relative to the attorney disciplinary process, not jurisdictional considerations. Id., pp. 8542-55. Nothing in the legislative history specifically supports a mandatory linguistic interpretation.

It is well settled that statutes are to be read as favoring subject matter jurisdiction, absent a clear indication of legislative intent to limit it. Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 765, 628 A.2d 1303 (1993). There is no such clear indication here. We therefore are brought full circle to the puipose of the comprehensive disciplinary scheme before us.

“An attorney as an officer of the court in the administration of justice, is continually accountable to it for the manner in which he exercises the privilege which has been accorded him. His admission is upon the implied condition that his continued enjoyment of the right conferred is dependent upon his remaining a fit and safe person to exercise it, so that when he, by misconduct in any capacity, discloses that he has become or is an unfit or unsafe person to be entrusted with the responsibilities and obligations of an attorney, his right to continue in the enjoyment of his professional privilege may and ought to be declared forfeited. . . . Therefore, [i]f a court disciplines an attorney, it does so not to mete out punishment to an offender, but [so] that the administration of justice may be safeguarded and the courts and the public protected from the misconduct or unfitness of those who are licensed to perform the important functions of the legal profession.” (Citation omitted; internal quotation marks omitted.) Massameno v. Statewide Grievance Committee, 234 Conn. 539, 554-55, 663 A.2d 317 (1995). In light of these very strong public policy concerns for attorney accountability, and the need for public confidence in the justice system, it would be improper to interpret § 51-90g (g) to create mandatory jurisdictional limitations that would ultimately undermine the long-standing law regarding the inherent authority of the court to regulate attorney conduct.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to affirm the judgment of the trial court.

In this opinion BORDEN, PALMER and PETERS, Js., concurred.

BERDON, J.,

dissenting. The majority concludes that the failure of the defendant, the statewide grievance committee (committee), to comply with the time requirements of General Statutes (Rev. to 1993) § 51-90g (g) and Practice Book § 27J (i), does not deprive the committee of subject matter jurisdiction to act on a grievance complaint alleging attorney misconduct. In other words, according to the majority, the committee may permissibly pursue a grievance complaint well beyond the four month time limitation specifically provided in § 51-90g (g). I disagree.

I agree with the majority that we have a special obligation with respect to assuring that attorney conduct comports with standards of the practice of law, “a profession the main propose of which is to aid in the doing of justice . . . Rosenthal v. State Bar Examining Committee, 116 Conn. 409, 414, 165 A. 211 (1933). “An attorney as an officer of the court in the administration of justice, is continually accountable to it for the manner in which he exercises the privilege which has been accorded him. . . . This unique position as officers and commissioners of the court . . . casts attorneys in a special relationship with the judiciary and subjects them to its discipline.” (Citation omitted; internal quotation marks omitted.) Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 237-38, 558 A.2d 986 (1989).

I begin by setting forth the procedural framework for complaints filed under the statewide grievance system. Essentially, this system provides three tiers of review. First, a local grievance panel reviews a grievance complaint to determine whether probable cause exists to warrant further investigation. General Statutes § 51-90f (a); Practice Book § 27F (c). Second, the committee, or at its designation, a subcommittee, reviews the local panel’s determination. General Statutes (Rev. to 1993) § 51-90g (a); Practice Book § 27J (c). Finally, if a subcommittee performs the review, it must issue a proposed decision to the committee, or if the committee itself conducts the review, it renders a final decision. General Statutes (Rev. to 1993) § 51-90g (a), (c), (f) and (g); Practice Book § 27J (c), (e), (h) and (i).

Our focus in this case is the procedural requirements with respect to the committee once the local panel has made a determination of probable cause or no probable cause. Under § 51-90g (a), the committee or a subcommittee may review the local panel’s determination. If the committee refers the matter to a subcommittee, the subcommittee is required to render a proposed decision within ninety days of the local panel’s determination, unless the subcommittee moves for an extension of thirty days, which shall only be granted for good cause. General Statutes (Rev. to 1993) § 51-90g (c). If the committee itself conducts the review, then it must render a final decision within four months of the local panel’s determination. General Statutes (Rev. to 1993) § 51-90g (g).

The time limit on subcommittee action in subsection (c) contains a savings clause, which provides that the subcommittee’s failure to complete its action within the prescribed time period is not necessarily cause for dismissal. In such circumstances, the committee can, on its own initiative or on motion of the complainant or respondent, inquire into the delay and “determine the appropriate course of action.” General Statutes (Rev. to 1993) § 51-90g (c). In contrast to the provisions relating to subcommittee action, the General Assembly and the judges of the Superior Court did not provide a savings clause for the committee itself when it fails to abide by the four month time limit to review the local panel’s determination.

In reaching its conclusion, the majority today ignores the mandate in § 51-90g (g), the statute’s legislative history and our own rules of practice, and stands the precedent of Rozbicki on its head. In other words, according to the majority, “shall” means shall when the court wants it to mean shall, but “shall” does not mean shall when the court is of another mind.

My analysis starts, as the Appellate Court’s did, with the plain language of the statute. General Statutes (Rev. to 1993) § 51-90g (g) provides in relevant part: “When the committee conducts the hearing or hearings under this section, it shall render its decision not later than four months from the date the panel’s determination of probable cause or no probable cause was filed with the state-wide grievance committee. ...” (Emphasis added.) It is undisputed that more than four months elapsed from the time that the local grievance panel filed its determination of no probable cause to the time that the committee referred the matter to a subcommittee. I, like the Appellate Court, conclude that “this language clearly and unambiguously mandates that the committee complete its action within four months. ” Doe v. Statewide Grievance Committee, 41 Conn. App. 671, 676, 677 A.2d 960 (1996). “Where the meaning of a statute ... is plain and unambiguous, the enactment speaks for itself and there is no occasion to construe it. Its unequivocal meaning is not subject to modification by way of construction.” (Internal quotation marks omitted.) Grievance Committee v. Trantolo, 192 Conn. 15, 22, 470 A.2d 228 (1984).

Furthermore, even if § 51-90g (g) were ambiguous, the legislative history supports the conclusion that the legislature intended the time limits in § 51-90g (g) to be mandatory. In 1986, the legislature revised the statute to include the requirement that the committee render its decision within four months of the local panel’s determination. Public Acts 1986, No. 86-276, § 8 (P.A. 86-276). In enacting this amendment, the legislature emphasized the importance of the newly-added four month time frame for committee action. “The amendment maintains . . . that if you’re going to have a hearing with probable cause, that must be held within four months . . . .” 28 H.R. Proc., Pt. 23, 1985 Sess., p. 8562, remarks of Representative Richard D. Tulisano. As another legislator stated: “Once the determination is made that there is probable cause to continue to a full hearing, at that point within the four months, the hearing would have to take place. . . . One of the complaints of the community has been that it takes too long for this grievance procedure to take place. It is hoped that this would tighten that up.” Id., pp. 8529-30, remarks of Representative William L. Wollenberg.

Indeed, the legislature underscored the need to establish rigid guidelines for the investigation of complaints of misconduct in order to bolster public confidence in the process as well as to protect the rights of attorneys who are involved. “[I]t is extremely important at this point that the public know how the system works, that it have some assurance that the standards are going to be laid down and observed consistently, and I think this advances [the statute] by . . . eliminating some of the abuses without itself becoming abusive to those whose professional integrity may be at stake.” Id., p. 8561, remarks of Representative Richard Blumenthal. Accordingly, the legislative history reflects that the legislature intended that the committee must render a decision within four months of the filing of a complaint.

Furthermore, when the judiciary acquiesced in the time limitation imposed by P.A. 86-276, § 8, in 1986, we used the identical language in Practice Book § 27J (i): “[The committee] shall have one hundred and twenty days from the date the panel’s determination concerning probable cause was filed with it to render a decision . . . .” Surely, when the rule was adopted by the then 143 judges of the Superior Court, we certainly knew what “shall” meant.

Finally, even if the language of § 51-90g (g), the legislative history and our own rules of practice are not clear, the precedent of Rozbicki governs this case. Although the majority cites extensively to Rozbicki, it totally ignores the fundamental tenets of construction that solely led the court to conclude that the time limitation in § 51-90g (c) was directory, rather than mandatory, and the reasoning of which, if applied to this case, would compel the conclusion that the time limitation in § 51-90g (g) was mandatory. As Judge Schaller of the Appellate Court stated in his concurrence in Doe v. Statewide Grievance Committee, supra, 41 Conn. App. 682, “[although the court also emphasized the broader context of the supervisory role of the judiciary in governing attorney conduct, our Supreme Court in Roz-bicki based its decision primarily on the impact of the § 51-90g (c) savings clause. In the case before us, concerning the mandatory time limit of § 51-90g (g), the absence of a comparable savings clause together with the acquiescence of the judiciary in adopting the time limits in § 27J compels our result. When the committee is proceeding under § 51-90g (g), neither the statute nor the rule of practice authorizes discretionary action in the event of delay beyond the time limit. By adopting the statutory language in the rule of practice, the judiciary has bound the committee to the statutory standard, without allowing discretion as it carries out its supervisory role over attorney conduct. This court is bound by the analysis in the Rozbicki decision to reach that result.”

Furthermore, it is reasonable to conclude that in order to achieve public confidence in the grievance process and fairness to the attorneys subject to the process, the legislature had good reason to establish mandatory time limits for the committee and a more flexible approach for the subcommittee. With respect to subcommittee action, it is entirely logical that the time limits imposed on the subcommittee are not mandatory, because the committee, on motion of the respondent, the claimant or on its own, may inquire into the subcommittee’s delay in rendering a proposed decision. General Statutes (Rev. to 1993) § 51-90g (c). Importantly, the committee has the authority under that same subsection to “determine the appropriate course of action” when there has been subcommittee delay. In other words, the committee has the statutory authority to oversee all subcommittee action and to compel the subcommittee to act when it has failed to do so in a timely fashion. In contrast, the committee is self-governing — there are no provisions in § 51-90g (g) that provide an avenue for the respondent, or any other party, to move that the committee inquire into its own delay or, for that matter, determine the appropriate course of action. In other words, there is no check on the committee when the committee itself has failed to abide by the statutory guidelines, unless this court were to construe the provisions of § 51-90g (g) as mandatory.

Although attorneys occupy a special place in our system of justice, that does not mean that we should ignore their rights. The plain language of § 51-90g (g), its legislative history, the rules of this court, and, indeed, our own precedent dictate that the committee must act within four months. There are practical reasons that the legislature obviously considered in circumscribing the committee’s jurisdiction by requiring it to act within this short time frame. First, the public has the right to a prompt determination of whether an attorney has committed unethical conduct. Second, anyone who has practiced law not only knows the. devastating effect that a grievance complaint may have on an ethical attorney, but also its practical consequences. Just the pendency of the complaint, regardless of whether it is provable, can, for example, have an effect on the renewal of an attorney’s legal malpractice insurance or on an application for a judgeship. It is absolutely clear that it is essential that the professional conduct must stand the test of strict scrutiny, but in doing so we must also refrain from trampling on the rights of the members of the legal profession.

Accordingly, I dissent.

       General Statutes (Rev. to 1993) § 51-90g (g), now § 51-90g (h), provides in relevant part: “When the committee conducts the hearing or hearings under this section, it shall render its decision not later than four months from the date the panel’s determination of probable cause or no probable cause was filed with the state-wide grievance committee. . . .”
      Number 93-370, § 2, of the 1993 Public Acts amended § 51-90g by inserting a new subsection (g) and redesignating the former subsection (g) as subsection (h). We refer in this opinion to the applicable section as § 51-90g (g).

       Practice Book § 27J (i) provides in relevant part: “If the statewide grievance committee does not assign a complaint to a reviewing committee, it shall have one hundred and twenty days from the date the panel’s determination concerning probable cause was filed with it to render a decision dismissing the complaint, imposing sanctions and conditions as authorized by Sec. 27M.1 or directing 1he statewide bar counsel to file a presentment against the respondent. . . .”

       “On April 13,1994, the trial court granted the plaintiffs request to proceed in this matter anonymously as John Doe. In its memorandum of decision, the trial court ordered that the plaintiffs identity not be disclosed until the appeal period expired. The trial court also stated that it would schedule argument on the issue of whether the plaintiffs identity should be disclosed during the pendency of the appeal. The record does not reveal any further action by the trial court concerning the plaintiffs anonymity in this matter.” Doe v. Statewide Grievance Committee, supra, 41 Conn. App. 672 n.1.

       "The parties stipulate that the grievance proceeding relates to an incident alleged to have occurred on or about December 12,1990, that did not involve a client or clients’ funds.” Doe v. Statewide Grievance Committee, supra, 41 Conn. App. 672 n.2.

       “A grievance proceeding against an attorney is commenced by filing a complaint with the statewide bar counsel. Any person may file a written complaint alleging attorney misconduct. Within seven days, the statewide bar counsel shall refer the complaint to the appropriate local grievance panel for investigation. General Statutes § 51-90e (a); Practice Book § 27F (a). The grievance panel shall investigate the complaint and, within ninety days, determine whether probable cause exists that the attorney is guilty of misconduct. General Statutes § 51-90f (a) and (c); Practice Book § 27F (c) and (f). If the local grievance panel makes a finding of probable cause, the committee either conducts a hearing itself or refers the matter to a subcommittee. General Statutes § 51-90g (a); Practice Book § 27J (c). Similarly, if the local grievance panel makes a finding of no probable cause, the committee either reviews the matter itself to determine whether it agrees with the local grievance panel’s determination of no probable cause or refers the matter to a subcommittee for such review. Id. Upon a finding of probable cause, either the committee or a subcommittee holds hearings on the complaint. General Statutes § 51-90g (c) and (g); Practice Book § 27J (c) and (i).” Doe v. Statewide Grievance Committee, supra, 41 Conn. App. 672 n.3.

       In his concurring opinion, Judge Schaller relied exclusively on this court’s decision in Statewide Grievance Committee v. Rozbicki, supra, 211 Conn. 233-34, to conclude that the trial court had improperly refused to enjoin the committee from taking further action on the complaint of attorney misconduct. Examining the legislative history of § 51-90g (g), and challenging the majority’s reliance on that history, Judge Schaller remarked that the purpose of expediting the process was at least as much for the benefit of the public as for those facing charges of misconduct and that “[t]he result that [they] are compelled to reach in this case seriously diminishes any benefit to the public.” Doe v. Statewide Grievance Committee, supra, 41 Conn. App. 683.

       The plaintiff argued before the Appellate Court, and again before this court, that because § 51-90g (g), unlike § 51-90g (c), does not contain any language providing the committee with the power or discretion to review its own failure to comply with the timing requirements, the committee is thereby deprived of any jurisdiction once the time period has passed and, consequently, the issue in this case is the jurisdiction of the committee and not of the court. As we explain in this opinion, we disagree with the plaintiffs interpretation of the language of § 51-90g (g) and its jurisdictional implications. In cases of alleged attorney misconduct, the jurisdiction of the committee and the jurisdiction of the court are necessarily intertwined and § 51-90g (g) must be interpreted in light of the broad framework of that relationship. Furthermore, as a matter of common sense, we note that it is neither expected nor necessary that language giving the committee control over its own delay would appear in the statute.

       General Statutes (Rev. to 1987) § 51-90g (e) provided: “The subcommittee shall conclude any hearing or hearings and shall render its proposed decision not later than ninety days from the dat e the panel’s determination of probable cause or no probable cause was filed with the state-wide grievance committee. The subcommittee may file a motion for extension of time not to exceed thirty days with the state-wide grievance committee which shall grant the motion only for good cause shown. If the subcommittee does not complete its action on a complaint within the period of time provided in this section, the state-wide grievance committee shall, on motion of the complainant or the respondent or on its own motion, inquire into the delay and determine the appropriate course of action.”
      We note that No. 88-152 of the 1988 Public Acts amended § 51-90g (c) to provide that the failure of the subcommittee to complete its action on the complaint within the time provided in the section “shall not be cause for dismissal of the complaint.” In Rozbicki, this court concluded that the legislature’s silence, when amending § 51-90g (c), supported an inference that the legislators considered the additional sentence to be a clarification of § 51-90g (c) rather than a departure from the original meaning of the section. See Statewide Grievance Committee v. Rozbicki, supra, 211 Conn. 243-44.

       Although in Rozbicki we used the word “mandatory,” our conclusion that, absent a showing of prejudice as a result of the temporal violation, the complaint should not be dismissed, was more consistent with a determination that the time limit was “directory.” See Fidelity Trust Co. v. BVD Associates, 196 Conn. 270, 278-79, 492 A.2d 180 (1985).

       In light of our determination that § 51-90g (g) does not limit the court’s jurisdiction to review attorney misconduct, we need not address the committee’s claim that the Appellate Court improperly concluded that the judges of the Superior Court acquiesced in an interpretation of Practice Book § 27J (i) that makes the 120 day time frame jurisdictional.

       The dissent voices concern for those attorneys against whom there are outstanding complaints who, as a result of this opinion, may not be assured of a decision by the committee within four months of the panel’s determination of probable cause. The dissent is troubled by the possibility that these attorneys would be required to reveal the existence of any such outstanding complaints in their applications for malpractice insurance or judgeships. Although we recognize this concern, we disagree that it should affect this court’s decision as to jurisdiction. Rattier, this concern goes to the issue of prejudice, which the trial court is always free to consider as part of its oversight responsibilities.

       General Statutes (Rev. to 1993) § 51-90g (g), now § 51-90g (h), provides in relevant part: “When the committee conducts the hearing or hearings under this section, it shall render its decision not later than four months from the date the panel’s determination of probable cause or no probable cause was filed with the state-wide grievance committee. . .

       Practice Book § 27J (i) provides in relevant part: “If the statewide grievance committee does not assign a complaint to a reviewing committee, it shall have one hundred and twenty days from the date the panel’s determination concerning probable cause was filed with it to render a decision dismissing the complaint, imposing sanctions and conditions as authorized by Sec. 27M.1 or directing the statewide bar counsel to file a presentment against the respondent. . . .”

       The judges of the Superior Court have adopted rules that are substantially identical to the General Statutes with respect to the committee. See Practice Book §§ 27B through 27N.

       The chart set forth in the appendix to this dissent, which was included in the plaintiffs brief, graphically illustrates the procedural route provided by the statutory scheme.

       Indeed, the majority’s reasoning is reminiscent of the following passage from the book, Through the Looking-Glass, by Lewis Carroll:
      “ ‘There’s glory for you!’
      “ T don’t know what you mean by “glory,” ’ Alice said.
      “ T meant, “there’s a nice knock down argument for you!” ’
      “ ‘But “glory” doesn’t mean “a nice knock down argument,” ’ Alice objected.
      “ ‘When I use a word,’ Humpty Dumpty said in a rather scornful tone, ‘it means just what I choose it to mean — neither more nor less.’ ” (Emphasis in original.) L. Carroll, Through the Looking-Glass (Messner ed. 1982) p. 198.

       I recognize that it has been argued that, under the conclusion reached by my analysis, “the committee can refer every case to a subcommittee at the outset, thereby assuring itself of the discretionary authority of § 51-90g (c) to act later.” Doe v. Statewide Grievance Committee, supra, 41 Conn. App. 684 (Schaller, J., concurring). This argument, however, presupposes that the committee will act in bad faith by purposely engaging in such dilatory tactics. I will not, therefore, subscribe to such a view.

       Indeed, as the plaintiffs counsel pointed out at oral argument, an attorney would be obligated to report that a grievance is pending even though a local grievance panel has made a determination of no probable cause, because the committee may eventually make, under the majority’s construction of § 51-90g (g), a contrary finding well beyond the four month period.

       I agree with the majority’s statement in footnote 11 of its opinion that my concerns about the victims of attorney misconduct, the public and attorneys should not be determinative of whether the time limits in § 51-90g (g) implicate the committee’s jurisdiction. Nevertheless, these concerns are appropriate to consider in ascertaining the legislative intent. As I have pointed out in this dissent, one of the public concerns expressed by Representative Wollenberg in the legislative debates with respect to adopting the mandatory four month time limit was the length of time that the grievance process took and the need to provide finality to the process.


author:
PETERS, J.
      MCDONALD, J.,

text:
    ALFONS SKUZINSKI v. BOUCHARD FUELS, INC., ET AL.
    (15564)
    Callahan, C. J., and Norcott, Palmer, McDonald and Peters, Js.
    Argued February 18
    officially released May 6, 1997

      William F. Gallagher, with whom were Kurt D. Koehler, Thornas J. Airone, Joseph Trotta and Erica Todd, for the appellants (defendants).

      Ann Grunbeck Monaghan, with whom were John L. Hayes and, on the brief, Lloyd D. Petersen, for the appellees (third party defendants).
   Opinion

PETERS, J.

The principal issue in this appeal is whether, as a condition to a common law action for indemnification, a tortfeasor must establish the existence of an independent relationship between itself and the joint tortfeasor from which it seeks indemnity. The plaintiff, Alfons Skuzinski, filed a complaint seeking damages for personal injuries that he had sustained when he was struck by a truck operated by the defendant Brian Bouchard and owned by the defendant Bouchard Fuels, Inc. (Bouchard). Bouchard then filed a third party complaint against the third party defendants, C.B.C. Associates (C.B.C.) and V.S.F., Inc., doing business as Clearview Liquor Shoppe (Clearview), in which Bouchard alleged that it was entitled to indemnity because the failure of the third party defendants to clear snow from their sidewalk had caused the plaintiff to walk in the adjacent street, where he was injured. The trial court granted the third party defendants’ motions to strike the third party complaint and subsequently rendered judgment in their favor. After a jury trial, the plaintiff recovered damages from Bouchard in the amount of $1,400,000. Bouchard appealed to the Appellate Court from the judgment in favor of the third party defendants, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court, but on alternate grounds.

“In an appeal from a judgment granting a motion to strike, we operate in accordance with well established principles. We take the facts to be those alleged in the [third party] complaint that has been stricken and we construe the [third party] complaint in the manner most favorable to sustaining its legal sufficiency.” Bohan v. Last, 236 Conn. 670, 674, 674 A.2d 839 (1996); Waters v. Autuori, 236 Conn. 820, 825, 676 A.2d 357 (1996); RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994).

In its third party complaint, Bouchard alleged, inter alia, that C.B.C. controlled and operated premises located at 192 Hall Avenue in Meriden and that Clearview was in the business of selling alcoholic beverages on those premises. Bouchard also alleged that, prior to the accident, the plaintiff had entered the premises of the third party defendants, as an invitee, and had purchased alcoholic beverages there. Bouchard further alleged that the third party defendants had failed to remove snow on the sidewalk in front of their premises and had failed to warn the plaintiff of the risks associated with the existing snow cover, and that, as a result, after having made his purchases, the plaintiff proceeded to walk in the street on Hall Avenue, where he was struck by Bouchard’s truck. The third party complaint contains no allegation, however, of any independent legal relationship of any kind between Bouchard and the third party defendants. As the trial court observed in so ruling in its memorandum of decision: “The relationship between these parties was clearly random and unanticipated . . . .”

The question that we must decide is whether Bouchard’s third party complaint is legally sufficient to state a cause of action for common law indemnity. “Ordinarily there is no right of indemnity or contribution between joint tort-feasors. . . . Where, however, one of the defendants is in control of the situation and his negligence alone is the direct immediate cause of the injury and the other defendant does not know of the fault, has no reason to anticipate it and may reasonably rely upon the former not to commit a wrong, it is only justice that the former should bear the burden of damages due to the injuiy. . . . Under the circumstances described, we have distinguished between ‘active or primary negligence,’ and ‘passive or secondary negligence.’ . . . Indemnity shifts the impact of liability from passive joint tortfeasors to active ones.” (Citations omitted; internal quotation marks omitted.) Kyrtatas v. Stop & Shop, Inc., 205 Conn. 694, 697-98, 535 A.2d 357 (1988); Burkert v. Petrol Plus of Nauga-tuck, Inc., 216 Conn. 65, 74, 579 A.2d 26 (1990); Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, 412-16, 207 A.2d 732 (1965).

For the purposes of the present appeal, the parties agree that, under these precedents, Bouchard’s third party complaint must allege facts sufficient to establish at least four separate elements in order to maintain a common law action for indemnity. These elements are:. “(1) that the other tortfeasor was negligent; (2) that [that] negligence, rather than [Bouchard’s], was the direct, immediate cause of the accident and injuries; (3) that [the other tortfeasor] was in control of the situation to the exclusion of [Bouchard]; and (4) that [Bouchard] did not know of such negligence, had no reason to anticipate it, and could reasonably rely on the other tortfeasor not to be negligent.” Kyrtatas v. Stop & Shop, Inc., supra, 205 Conn. 698; Burkert v. Petrol Plus of Naugatuck, Inc., supra, 216 Conn. 74; Kaplan v. Merberg Wrecking Corp., supra, 152 Conn. 416.

I

The trial court did not rule expressly on whether Bouchard’s third party complaint contained allegations sufficient to satisfy the established four part standard. Instead, it granted the third party defendants’ motion to strike on the ground that the third party complaint did not contain allegations of fact sufficient to establish an independent relationship between the parties, a fifth element for a common law action of indemnity that had been articulated by the Appellate Court in Atkinson v. Berloni, 23 Conn. App. 325, 327-28, 580 A.2d 84 (1990). Bouchard claims that this ruling was improper. We have not previously considered whether an independent legal relationship between the indemnitor and the indemni-tee is an additional fifth element that a complaint sounding in common law indemnity must satisfy in all cases. We conclude today that our existing precedents contain no such universal requirement and that we should not engraft it onto our existing case law.

In Atkinson, the Appellate Court held that “[i]mplicit in indemnification cases is the requirement of an independent legal relationship between the indemnitor and the indemnitee giving rise to a special duty.” Id., 327. Recognizing that such an overarching requirement had not been expressly articulated in Connecticut cases dealing with claims for indemnification, the Appellate Court held, nonetheless, that the absence of an independent legal relationship was tire implied common thread in the cases in which claims for indemnification had been disallowed. Id., 328.

As the Appellate Court in Atkinson acknowledged, however, our precedents have required the showing of a special antecedent legal relationship only in the context of indemnification claims between joint tortfeasors that arise in the context of our workers’ compensation law. Id., 327. Statutory law provides that, for most purposes, workers’ compensation payments are the exclusive source of remedy against an injured employee’s employer. General Statutes § 31-284 (a); see also Bouley v. Norwich, 222 Conn. 744, 751-52, 610 A.2d 1245 (1992); Pokorny v. Getta’s Garage, 219 Conn. 439, 454-55, 594 A.2d 446 (1991). In view of the exclusivity of workers’ compensation relief, indemnity claims against employers as joint tortfeasors warrant the special additional limitation of an independent legal relationship. Ferryman v. Groton, 212 Conn. 138, 143-45, 561 A.2d 432 (1989); Farm Bureau Mutual Automobile Ins. Co. v. Kohn Bros. Tobacco Co., 141 Conn. 539, 545, 107 A.2d 406 (1954). In other contexts, although claims for common law indemnification have sometimes been denied, the reason has not been the absence of an independent legal relationship. The third party defendants have cited no precedent, and we know of none, in which we have held that the legal duty of care that is at the core of all liability in tort; see RK Constructors, Inc. v. Fusco Corp., supra, 231 Conn. 385-86; depends, in every common law indemnity case, upon proof of an implied or express antecedent relationship between the parties.

To bolster their claims that we should nonetheless impose such a requirement on claims for common law indemnity, the third party defendants urge us to consider the policy implications that flow from recent legislative changes in our tort law. Obviously, the legislature is free to make policy choices that expressly override existing common law precedents. Even in the absence of direct legislative modification of the common law principles that are at issue, legislative actions on related matters may have altered the overall legal landscape so significantly that the continued viability of existing common law precedents is placed in doubt. See, e.g., Fahy v. Fahy, 227 Conn. 505, 513-14, 630 A.2d 1328 (1993); Hamm v. Taylor, 180 Conn. 491, 494-95, 429 A.2d 946 (1980).

In this case, the third party defendants do not claim that the legislature expressly has overridden the common law of indemnity. Rather, they claim that the legislature impliedly has changed the ground rules for such common law claims by enacting General Statutes § 52-572h. Contrary to our common law; see, e.g., Biro v. Hill, 214 Conn. 1, 6, 570 A.2d 182 (1990); § 52-572h now permits contribution among joint tortfeasors. The third party defendants claim that, as a result of this expansive statutory right to contribution, the common law of indemnity should be applied more restrictively. We are unpersuaded. The inferences that we draw from the enactment of § 52-572h must be guided by the express language of § 52-572h (j), which provides: “This section shall not impair any right to indemnity under existing law. Where one tortfeasor is entitled to indemnity from another, the right of the indemnitee is for indemnity and not contribution, and the indemnitor is not entitled to contribution from the indemnitee for any portion of his indemnity obligation.” Read in its entirety, § 52-572h neither manifests any legislative intent to impose additional limitations on an action for indemnity nor furnishes a basis for our independent modification of the common law in this respect. See Malerba v. Cessna Aircraft Co., 210 Conn. 189, 198-99, 554 A.2d 287 (1989).

We conclude, therefore, that contrary to the holding in Atkinson v. Berloni, supra, 23 Conn. App. 325, a third party plaintiff, outside the context of workers’ compensation law, need not establish the existence of an independent legal relationship between itself and the alleged indemnitor as a condition for recovery on the basis of a common law claim for indemnity. See also Williams v. Hoffman/New Yorker, Inc., 923 F. Sup. 350, 354-55 (D. Conn. 1996). The trial court improperly relied on this ground when it granted the third party defendants’ motion to strike and their motion for judgment.

II

Even though the judgment of the trial court in favor of the third party defendants cannot be sustained on the ground upon which the court rendered it, we nonetheless may affirm the court’s judgment on a dispositive alternate ground for which there is support in the trial court record. See Hallas v. Boehmke & Dobosz, Inc., 239 Conn. 658, 672, 686 A.2d 491 (1997); Bernstein v. Nemeyer, 213 Conn. 665, 669, 570 A.2d 164 (1990); Favorite v. Miller, 176 Conn. 310, 317, 407 A.2d 974 (1978). In their trial court motion to strike Bouchard’s third party complaint, the third party defendants raised two grounds in addition, and unrelated, to their claim that Bouchard had failed to allege facts sufficient to establish an independent legal relationship between the parties. The third party defendants now argue that these additional challenges to the sufficiency of Bou-chard’s third party complaint furnish alternate bases to sustain the trial court’s judgment.

As the trial court noted, the third party defendants’ motion to strike challenged the legal sufficiency of Bouchard’s third party complaint on the grounds that the third party complaint had failed to allege facts sufficient to establish that: (1) the third party defendants had exclusive control of the situation; and (2) Bouchard did not know of, nor did it have reason to anticipate, the alleged negligence of the third party defendants. See Kyrtatas v. Stop & Shop, Inc., supra, 205 Conn. 698. Although the trial court’s memorandum of decision is somewhat ambiguous, we are persuaded that the trial court dismissed Bouchard’s third party complaint without ruling on the merits of either of these alternate claims. In the absence of a definitive trial court ruling, we might remand for further trial court proceedings, but we have decided, in the interests of judicial economy, to consider whether, as a matter of law, the trial court’s judgment can be sustained on one of these alternate grounds. See Almeida v. Liberty Mutual Ins. Co., 234 Conn. 817, 826, 663 A.2d 382 (1995).

We will confine our analysis to the first of these challenges to the validity of Bouchard’s third party complaint. There is no dispute that, to maintain a common law action for indemnity, not based on statute or express contract, the facts alleged in Bouchard’s third party complaint must establish that the third party defendants were “in control of the situation to the exclusion of [Bouchard].” Kyrtatas v. Stop & Shop, Inc., supra, 205 Conn. 698; Burkert v. Petrol Plus of Nauga-tuck, Inc., supra, 216 Conn. 74; Kaplan v. Merberg Wrecking Corp., supra, 152 Conn. 416.

Bouchard contends that, for two reasons, we should not address the merits of the third party defendants’ claim that the third party complaint does not allege facts sufficient to establish such exclusive control. First, Bouchard argues that the existing trial court record does not provide a proper basis for our consideration of the merits. Second, Bouchard argues that the issue of exclusive control is necessarily a question of fact that cannot be resolved on a motion to strike. We disagree.

Bouchard’s first claim, with respect to the adequacy of the record, asserts that this court cannot adjudge whether the third party complaint sufficiently alleges exclusive control because Bouchard has not had the opportunity to amend the complaint to include the requisite allegations. As a result of the trial court’s decision to premise its ruling on the absence of an allegation of an independent legal relationship, Bouchard contends that it was unable to file substitute pleadings directed to the issue of exclusive control. See Practice Book § 157 (permitting party to file substitute pleading after motion to strike has been granted). Had it been afforded the opportunity to file a new pleading, Bouchard contends that it would have alleged explicitly that the third party defendants, owning and operating a commercial establishment to which they had invited members of the public, exercised the requisite exclusive control by their failure to remove snow from their sidewalk. We are persuaded, however, that these additional explicit allegations are implicit in the third party complaint as originally filed, and we will construe the third party complaint accordingly. So construed, the record is adequate for us to proceed.

In the alternative, Bouchard claims that the question of exclusive control should not be resolved on a motion to strike because the absence or presence of exclusive control is a question of fact. That is ordinarily the applicable rule. Weintraub v. Richard Dahn, Inc., 188 Conn. 570, 573, 452 A.2d 117 (1982); Kaplan v. Merberg Wreck ing Corp., supra, 152 Conn. 418. Nonetheless, special circumstances may give rise to the question of whether, in light of the facts alleged in the third party complaint, any reasonable juror could find that the third party defendants had exclusive control of the situation. Under such circumstances, this issue becomes a question of law. Cf. Abrahams v. Young & Rubicam, Inc., 240 Conn. 300, 307, 692 A.2d 709 (1997); Hallas v. Boehmke & Dobosz, Inc., supra, 239 Conn. 674.

In this case, the question of exclusive control is one of the rare examples in which the issue may properly be decided as a question of law. We are persuaded that this is the proper characterization because the disagreement between the parties on this issue does not, upon close examination, turn upon any meaningful dispute about the alleged facts. We will assume that Bouchard has sufficiently alleged: (1) that the third party defendants had exclusive control over the snow covered sidewalk in front of their premises; (2) that they negligently had failed to clear the sidewalk or to warn the plaintiff of the danger created by their failure to do so; (3) and that their negligence had “forced” the plaintiff to walk on Hall Avenue, where he was injured. We also note, however, that at oral argument, Bouchard conceded that it did not claim that the unremoved snow had resulted in an encroachment on or an obstruction of Hall Avenue. The question thus posed is whether, if these facts were proven, any reasonable juror could find that Bouchard had met its burden of establishing that the third party defendants were in exclusive control of “the situation.”

We need not decide today the broad question of whether any potential indemnitor can ever be found to have been in “exclusive control” of a public street. We address only the narrower question raised by the circumstances of this case, namely, whether the exercise of exclusive control over a sidewalk, by failing to remove its snow cover, can be equated to the exercise of exclusive control over “the situation,” that is to say over an accident caused by an unrelated party and occurring in the adjoining public roadway. It is plausible to define exclusive control over “the situation” as exclusive control over the dangerous condition that gives rise to the accident. See Unicore, Inc. v. Tennessee Valley Authority, 768 F.2d 109, 114 (6th Cir. 1985) (no indemnification for manufacturer of welding materials from employer because employer’s failure to ventilate workplace did not create dangerous condition that injured employee welders); Mas v. Two Bridges Associates, 75 N.Y.2d 680, 690-91, 554 N.E.2d 1257, 555 N.Y.S.2d 669 (1990) (indemnification for building owner from elevator maintenance company for injury to tenant arising out of malfunctioning elevator). We conclude that, under the factual scenario alleged in Bouchard’s third party complaint, no reasonable juror could find that the third party defendants had exclusive control over the situation. The third party defendants, therefore, properly moved to strike the third party complaint, and the trial court properly rendered judgment in their favor.

The judgment is affirmed.

In this opinion CALLAHAN, C. J., and NORCOTT and PALMER, Js., concurred.

MCDONALD, J.,

concurring. I join in the majority’s disposition of this appeal.

I do not believe, however, that we should jettison the requirement that a party must show a legal relation to another from whom indemnity is claimed as enunciated in Atkinson v. Berloni, 23 Conn. App. 325, 327-28, 580 A.2d 84 (1990). Where a person is not in control of the situation and that person’s negligence is not the direct, immediate cause of an injury, that person may be liable only if he or she has some kind of legal relationship with the negligent party in exclusive control of the situation whose negligence is the direct, immediate cause. The requirement of a legal relationship, therefore, is inherent in a claim for indemnity under the direct negligence and exclusive control of the situation elements of Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, 416, 207 A.2d 732 (1965).

Other jurisdictions require a preexisting legal relationship between the parties as an element of an indemnity claim. See Ringsby Truck Lines, Inc. v. Bradfield, 193 Colo. 151, 155, 563 P.2d 939 (1977) (“the notion that indemnification must be based on some legal relationship or duty imposed by statutory or common law has long been implicit in the ‘primary tortfeasor’ requirement of our case law”); Frazer v. A. F. Munsteram, Inc., 123 Ill. 2d 245, 254, 527 N.E.2d 148 (1988); Central Telephone Co. v. Fixtures Mfg. Corp., 103 Nev. 298, 300, 738 P.2d 510 (1987) (“[ijndemnity is not available in a case involving joint or concurrent tortfeasors having no legal relation to one another, and each owing a duty of care to the injured party”); see Washington Electric Co-op. v. Massachusetts Municipal Wholesale Electric Co., 894 F. Sup. 777, 786-87 (D. Vt. 1995).

In 1859, this court, in Bailey v. Bussing, 28 Conn. 455 (1859), limited indemnification to those cases where the indemnitee’s liability existed “in the eye of the law, growing out of a mere relation to the perpetrator of the wrong”; id., 459; or “only by implication, or legal inference from a supposed relation to . . . the actual wrong doer.” Id., 458; see J. Steigelfest, “The Common Law of Indemnification,” Connecticut Lawyer 3, 5 (March 1994). This rule serves to bar indemnity claims between joint tortfeasors, otherwise strangers in law, that will surely be attempted in its absence.

In Atkinson v. Berloni, supra, 23 Conn. App. 327-28, the Appellate Court correctly recognized this requirement. The trial court in this case did so as well.

Accordingly, I concur.

       Because of the identity of interest between the two defendants, we will refer to them jointly as Bouchard.

       Although Bouchard also appealed to the Appellate Court from the issues arising out of the judgment on the verdict for the plaintiff, that part of its appeal has been withdrawn.

       In an action for indemnity, as distinguished from an action for contribution, one tortfeasor seeks to impose total liability upon another. The doctrines of indemnification and contribution are based on fundamentally different principles. “ [indemnity involves a claim for reimbursement in full from one on whom a primary liability is claimed to rest, while contribution involves a claim for reimbursement of a share of a payment necessarily made by the claimant which equitably should have been paid in part by others.” Kaplan v. Merberg Wrecking Corp., supra, 152 Conn. 412; see 4 Restatement (Second), Torts § 886B, comment (a) (1979); 3 F. Harper, F. James & O. Gray, Torts (2d Ed. 1986) § 10.2, p. 58 n.57.

       The Appellate Court in Atkinson cited four cases in support of the proposition that, even outside the context of workers’ compensation law, this court has not permitted indemnification in the absence of an antecedent legal relationship. See Burkert v. Petrol Plus of Naugatuck, Inc., supra, 216 Conn. 65; Malerba v. Cessna Aircraft Co., 210 Conn. 189, 554 A.2d 287 (1989); Beaudoin v. Town Oil Co., 207 Conn. 575, 542 A.2d 1124 (1988); Gino’s Pizza of East Hartford, Inc. v. Kaplan, 193 Conn. 135, 475 A.2d 305 (1984). None of these cases, however, supports the Appellate Court’s blanket adoption of such a requirement. Although each case involved parties whose independent legal relationship existed prior to the action, in no case was this relationship or its absence a direct, or even indirect, factor in our decision. See Williams v. Hoffman/New Yorker, Inc., 923 F. Sup. 350, 354 (D. Conn. 1996) (none of cases cited by Appellate Court suggests “either implicitly or explicitly, that an indemnitee fails to state an indemnity claim absent an independent legal relationship”).

       General Statutes § 52-572h provides in relevant part,: “(c) In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1,1987, if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for his proportionate share of the recoverable economic damages and the recoverable noneconomic damages ....
      “(d) The proportionate share of damages for which each party is liable is calculated by multiplying the recoverable economic damages and the recoverable noneconomic damages by a fraction in which the numerator is the party’s percentage of negligence . . . and the denominator is the total of the percentages of negligence .... Any percentage of negligence attributable to the claimant shall not be included in the denominator of the fraction. ...”

       Before the transfer of the case to this court, the Appellate Court, over Bouchard’s objection, granted the motion of the third party defendants to file a preliminary statement of issues presenting alternate grounds upon which the judgment of the trial court might be affirmed. See Practice Book § 4013 (a) (1).

       Since September 3,1996, the rules of appellate procedure have required the appellee to provide an adequate record for the presentation of the appellee’s claims. See Practice Book § 4007, official commentary. The prior rule, which was in effect at the time that the present appeal was filed, made it the responsibility of the appellant to provide an adequate record for review. See Practice Book § 4061.

       We recognize, however, cases in which other courts have held 1hat a public street is not under the exclusive control of a private party. See Spacy v. Stout’s Feed & Supply, 512 S.W.2d 849, 851 (Mo. App. 1974); Traders

        Compress Co. v. Steigler, 197 Okla. 204, 205, 169 P.2d 205 (1946); Flank v. Philadelphia Transportation Co., 203 Pa. Super. 474, 478, 201 A.2d 225 (1964).

       In light of this conclusion, we need not address the claim of the third party defendants that Bouchard’s complaint was properly stricken because it failed to allege that Bouchard did not know of, or have reason to anticipate, the negligence of the third party defendants.