author: CALLAHAN, J.

text:
    BOARD OF PUBLIC UTILITIES COMMISSIONERS OF THE CITY OF NORWICH v. YANKEE GAS SERVICES COMPANY
    (15271)
    Callahan, Borden, Berdon, Katz and Palmer, Js.

      Argued January 12
    decision released March 19, 1996

      Peter W. Benner, with whom were Sheila A. Huddleston and, on the brief, Timothy Patrick Brady, for the appellant (defendant).

      David Silverstone, with whom, on the brief, was William B. Heinrich, for the appellee (plaintiff).
   CALLAHAN, J.

This is an appeal from a judgment of the trial court granting a declaratory judgment and injunctive relief in favor of the plaintiff, the board of public utilities commissioners of the city of Norwich, against the defendant, Yankee Gas Services Company, enjoining the defendant from furnishing gas services to consumers in the town of Preston. The sole question raised by the appeal is whether the defendant has a right to provide gas service to customers located in Preston. The defendant claims to have acquired such a right in 1989 when it purchased the gas assets of the Connecticut Light and Power Company (CL&P). The plaintiff argues that the defendant does not possess a right to supply gas in Preston because: (1) CL&P never had such a right and, therefore, the right could not have been included in the purchase of CL&P’s gas assets by the defendant in 1989; and (2) even if CL&P did possess such a right, the defendant was prohibited by legislation from purchasing the right to provide Preston with gas service.

The authorization to provide gas service in Norwich and Preston has been legislated in a series of interrelated special acts over the last century. In 1897, the legislature incorporated the Norwich Gas and Electric Company and granted it a franchise to provide gas and electricity in the city of Norwich and the towns of Norwich and Preston. 12 Spec. Acts 1049, No. 391, § 6 (1897). In 1904, the city of Norwich purchased the Norwich Gas and Electric Company’s gas and electrical plants. In 1913, the legislature awarded the city of Norwich a gas and electric franchise coextensive with the 1897 franchise that had been held by the Norwich Gas and Electric Company. 16 Spec. Acts 882, No. 232 (1913). In 1919, by special act, the legislature provided that no company could “by purchase . . . acquire the right to sell or distribute gas or electricity within [the territory in which the city of Norwich has the right to sell or distribute gas or electricity] . . . .” 18 Spec. Acts 180, No. 225 (1919). Thereafter, in 1927, the legislature granted CL&P a statewide right to supply and sell gas with the proviso that CL&P “shall not have the power to supply and sell gas within the territory occupied and served by any other company now incorporated unless by consent of such other company . . . .”20 Spec. Acts 223, No. 195, § 1 (1927).

Much later, in 1951, the legislature consolidated the governments of the city and town of Norwich into the single municipality of the city of Norwich and established the board of public utilities commissioners of the city of Norwich for the purpose of controlling the production and distribution of gas, electricity and water in the city of Norwich. 26 Spec. Acts 459, No. 573, c. I, § 1, and c. XII, § 2 (1951). The legislature further provided, as it had in the 1919 special act, that no “company or person” could, “by purchase . . . acquire the right to sell or distribute gas and electricity within [the territory in which the board of public utilities commissioners of the city of Norwich has the right to sell or distribute gas or electricity] . . . .” 26 Spec. Acts 459, No. 573, c. XII, § 26 (1951). Thereafter, in 1955, by special act, the legislature granted the Mohawk Gas Services Company the power “to acquire by . . . purchase . . . and to hold, own, use, exercise, enjoy and dispose of the whole or any part of the gas property, rights, privileges, properties, securities, contracts, powers and franchises now or hereafter owned or possessed by any gas company chartered by the General Assembly of the state of Connecticut for the purchase, manufacture, production, transmission, distribution and sale of natural .. . gas and matters incidental thereto.” 27 Spec. Acts 166, No. 218, § 2 (1955). The Mohawk Gas Services Company changed its name to the Yankee Gas Services Company in May, 1989.

Pursuant to the pertinent special acts noted above, the city of Norwich and the plaintiff have been providing gas service to Norwich residents, industry and businesses for nearly a century. The plaintiff presently serves over 7200 industrial, commercial and residential gas customers. It owns and operates approximately 115 miles of gas distribution mains, five gate stations and other related gas facilities. Its annual sales exceed $9,000,000. With one minor exception, neither the city of Norwich nor the plaintiff has ever provided gas services to customers in the town of Preston. Its customers, rather, are all located within the municipal boundaries of Norwich.

The plaintiff asserts that it has not supplied gas to Preston because of “the economics of extending gas facilities, Preston’s rural nature and [because of] a lack of interest by Preston’s residents in obtaining gas service.” The plaintiff also asserts, however, that in 1994, when several potential major customers located in Preston expressed an interest in receiving gas service, the plaintiff immediately responded by taking affirmative steps to make gas service available to those prospective customers. Specifically, when the plaintiff learned in May, 1994, that the Norwich State Hospital in Preston was considering converting from oil to gas, the plaintiff installed eighty feet of unconnected pipe next to the hospital’s entrance, visited the hospital site, retained consultants to review the hospital’s specific needs, obtained bids for the installation of pipe and submitted a written proposal to the hospital.

In April, 1994, the defendant began installing a gas transmission pipeline from an existing line in the town of Montville through Preston in order to provide gas to the Foxwoods Casino in Ledyard, a town outside the plaintiffs franchise territory. In June, 1994, the plaintiff became aware that the defendant was installing the transmission line but believed that it was being installed to deliver gas to Foxwoods Casino only. The plaintiff subsequently learned that the defendant also intended to utilize the transmission line to service customers in Preston.

Thereafter, the plaintiff instituted this action seeking declaratory and injunctive relief to prohibit the defendant from selling or distributing gas in Preston. The trial court granted the declaratory and injunctive relief requested by the plaintiff, and enjoined the defendant from advertising, selling or distributing gas in Norwich or Preston. The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

For the defendant to prevail on appeal, we must determine that § 2 of Special Act No. 195 (1927) gave CL&P a right to supply and sell gas in Preston. We would also have to determine that the defendant was permitted to purchase that right pursuant to § 2 of Special Act No. 218 (1955), despite seemingly contrary language in § 26 of chapter XII of Special Act No. 573 (1951), which provides that no company can acquire by purchase the right to provide gas service “within the territory in which the board of public utilities commissioners of the city of Norwich has the right to sell or distribute gas or electricity . . . Therefore, in order to conclude that CL&P and, by purchase, the defendant had a right to distribute gas in Preston, we first would have to decide that the 1927 special act that granted CL&P a statewide right to supply and sell gas except “within the territory occupied and served by any other company,” would have allowed CL&P to supply gas in Preston because Preston is a separate “territory” that is not being “occupied and served by any other company.” See 20 Spec. Acts 223, No. 195, § 1 (1927). We determine that the city of Norwich and the town of Preston constitute a single, unitary “territory” as contemplated by the 1927 special act granting CL&P a statewide gas franchise, and that the trial court’s conclusion that the “territory” is being occupied and served with gas by the plaintiff is not clearly erroneous. CL&P could not and the defendant consequently cannot invade the plaintiffs franchise “territory” without a direct grant of authority from the legislature. We need not decide, therefore, whether the defendant validly could have purchased the right to supply gas in Preston, which is within the “territory” in which the plaintiff had “the right to sell or distribute gas.” 18 Spec. Acts 180, No. 225 (1919); 26 Spec. Acts 459, No. 573, c. XII, § 26 (1951).

Our resolution of the question presented in this case turns on the meaning of the term “territory” in the 1927 special act granting CL&P a statewide right to supply gas. That statewide right to supply gas explicitly excluded “the territory occupied and served by any other company now incorporated unless by consent of such other company.” (Emphasis added.) 20 Spec. Acts 223, No. 195, § 1 (1927). It is undisputed that the plaintiff has, at all relevant times, “occupied and served” Norwich with gas but that it has not extended gas service to Preston. The issue, therefore, is whether Preston is a distinct “territory” unto itself that is not being occupied and served by the plaintiff or whether it is an integral part of a unitary “territory” with Norwich that is being “occupied and served” because Norwich is being occupied and served.

In 1897, when the Norwich Gas and Electric Company was incorporated and empowered to provide gas services to the city of Norwich and the towns of Norwich and Preston, the legislature clearly considered the city of Norwich and the towns of Norwich and Preston together to comprise a single “territory.” The 1897 special act empowered the Norwich Gas and Electric Company “to use all . . . properties in the city of Norwich and towns of Norwich and Preston, which [it] may acquire or require for the purpose of lighting streets, parks, public and private dwellings within said territory .... Said corporation is also further empowered to do every kind of work within said territory necessary to carry on its business.” (Emphasis added.) 12 Spec. Acts 1049, No. 391, § 6 (1897). It is clear from the two references to “said territory” in the 1897 special act that the legislature used that term to include the city of Norwich and the towns of Norwich and Preston as a single, unitary whole.

In Special Act No. 225 (1919), the legislature again clearly treated the city of Norwich and the towns of Norwich and Preston as a single territory. In that special act, the legislature provided that no other company could “purchase, lease or otherwise acquire the franchises, rights or privileges of the Norwich Gas and Electric Company and by virtue thereof sell or distribute, or acquire the right to sell or distribute gas or electricity within the territory in which said [city of Norwich] has the right to sell or distribute gas or electricity, nor shall . . . any other company, by consolidation or merger with another company or by purchase or lease of its rights or franchises, have or acquire the right to sell or distribute gas or electricity within the said territory . . . .” (Emphasis added.) 18 Spec. Acts 180, No. 225 (1919). In those two special acts, the legislature was clearly referring to a single, unitary territoiy throughout which Norwich had the right to sell and distribute gas.

The defendant argues, however, that the term “territory” should not be construed to have a static, immutable meaning. The defendant contends that although “territory” may have referred to a unitary territory in previous special acts, in the 1927 special act granting CL&P a statewide right to sell and distribute gas, “territory” meant any divisible geographical or political subdivision that did not have gas service. We are not persuaded.

The fact that the legislature had referred twice to the city of Norwich and the towns of Norwich and Preston as a single “territory” when describing the plaintiffs gas franchise is persuasive evidence that the legislature in 1927 intended the term “territory” to possess the same meaning and to include the same area. “ ‘[T]he legislature is presumed to exercise its statutory authority with knowledge of existing statutes and with the intention of creating one consistent body of law.’ ” Caron v. Inland Wetlands & Watercourses Commission, 222 Conn. 269, 277, 610 A.2d 584 (1992); Kinney v. State, 213 Conn. 54, 65, 566 A.2d 670 (1989). An identical term used in 1897, 1919 and 1927 in special acts pertaining to the same subject matter should not be read to have differing meanings unless there is some indication from the legislature that it intended such a result. See Link v. Shelton, 186 Conn. 623, 627, 443 A.2d 902 (1982) (court may look to meaning given same phrase in even unrelated statutes and consider that where legislature uses same phrase it intends same meaning); 2B J. Sutherland, Statutory Construction (5th Ed. Singer 1992) § 51.02 (identical words or phrases used in related statutes given same meaning unless contrary intent appears).

“Territory” has been defined as a region or district. Funk & Wagnalls New Standard Dictionary of the English Language (1947). That definition, coupled with the previously noted language of the special acts, suggests that when the legislature assigned a territory to Norwich to distribute gas, it did not intend the assigned territory to be broken up by municipal boundaries unrelated to the provision of gas services. In 1927, the legislature could easily have permitted CL&P to provide gas service in any “town” or “municipality” or “distinct geographical area” that was not being “occupied and served” by another company. The legislature did not choose these terms, however, when it limited CL&P’s right to deliver gas services. Rather, the legislature used the term “territory,” which it had used twice in the same context to refer to the area encompassing both Norwich and Preston in which the plaintiff had the right to provide gas services. There is no reason to believe that the use of the word “territory” meant anything different in 1927 than it did in 1897 and 1919, or that “territory” in the 1927 special act was intended as a synonym for “town” or “municipality.”

The defendant argues that an interpretation of the term “territory” in the 1927 special act that melds Norwich and Preston into a single territory would have absurd consequences. See State v. Campbell, 180 Conn. 557, 563-64, 429 A.2d 960 (1980) (courts should avoid interpreting statutes to have absurd consequences). The defendant contends that the plaintiffs definition of territory could conceivably allow a company with a franchise territory that includes several municipalities to serve only one small area in one municipality and yet avoid competition. By so doing, the defendant asserts, a company could protect its gas franchise area from competition from any successor to CL&P’s statewide right to sell and distribute gas simply by claiming that it “occupied and served” its “territory.”

This argument incorrectly assumes that any service, no matter how small or insignificant, in a given territory will allow a company to claim successfully that it has “occupied and served” the territory within the meaning of the 1927 special act. We are not persuaded that a trial court could determine, as a factual matter, that a company with a gas franchise extending over several municipalities that serviced only one small area within that territory had, under any reasonable definition, “occupied and served” the territory. Several factors, including the number of customers being served relative to the number of customers in the territory as a whole and the amount of unmet demand for gas services within the territory, would have to be considered in order to determine appropriately whether an area is being “occupied and served.”

The trial court in this case concluded that the plaintiffs extensive provision of gas services within Norwich and its apparent willingness and ability to deliver those services to Preston if the need arose was a sufficient basis upon which to conclude that the plaintiff had “occupied and served” the unified territory encompassing the city of Norwich and the town of Preston. At trial, there was no evidence presented to the court by the defendant as to the relative size of the served and unserved areas or as to the need or demand for gas services in the unserved portion of the territory. “Whether the plaintiff ‘occupied and served’ its franchise area is a question of fact . . . .” Groton v. Yankee Gas Services Co., 224 Conn. 675, 691, 620 A.2d 771 (1993). We will not upset a trial court’s resolution of a question of fact unless it is clearly erroneous. Id. We are unable to conclude from our review of the record that the trial court’s finding that the plaintiff “occupied and served” the territory encompassing Norwich and Preston is erroneous.

Because the trial court’s conclusion that the relevant territory comprised of Norwich and Preston is being “occupied and served” by the plaintiff is not clearly erroneous, we conclude that Special Act No. 195 (1927) did not confer a right upon CL&P to sell gas in any part of the territory in which Norwich had a right to sell gas, i.e., Norwich and Preston. We need not consider, therefore, whether § 2 of Special Act No. 218 (1955) empowered the defendant to purchase a right to sell gas in Preston or whether § 26 of chapter XII of Special Act No. 573 (1951) prevented it from doing so. Because the 1927 special act did not give CL&P the right to provide gas service in Preston, the defendant could not have purchased such a right from CL&P, even if not prevented from doing so by § 26 of chapter XII of Special Act No. 573 (1951).

The judgment is affirmed.

In this opinion the other justices concurred.

       Until 1951, the city of Norwich and the town of Norwich were distinct municipalities. See 26 Spec. Acts 459, No. 573, c. I, § 1 (1951).

       The city of Norwich did, at one point, service a gas customer whose property was partially located in the town of Preston.

       The defendant argues for the first time on appeal that the plaintiff, a municipal agency, does not fall within the definition of the term “company” within the meaning of the 1927 special act and that the plaintiff therefore cannot claim the protection afforded by that special act. The defendant seeks review under the “plain error” doctrine of Practice Book § 4185. Such review, however, is limited to those “ ‘truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.’ ” Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 25, 664 A.2d 719 (1995); State v. Groomes, 232 Conn. 455, 467, 656 A.2d 646 (1995); Scott v. Barrett, 212 Conn. 217, 222, 561 A.2d 941 (1989). The defendant’s belated claim of error pertaining to the definition of “company” does not meet that standard and we decline to review it.

       The defendant asks us to interpret § 1 of Special Act No. 195 (1927) in light of the legislature’s action in 1951. The defendant points out that Special Act No. 225 (1919), which provided that no company could purchase the right to sell gas or electricity in the plaintiffs territory, explicitly provided that it would not “impair or limit any rights, franchises or privileges heretofore granted, and now existing, relating to the manufacture, distribution or sale of electricity,” while § 26 of chapter XII of Special Act No. 573 (1951), which contained the same proscription against purchasing gas or electricity rights in the plaintiffs territory, explicitly provided that it would not “impair or limit any rights, franchises or privileges heretofore granted, and now existing, relating to the manufacture, distribution or sale of gas or electricity.” (Emphasis added.) The defendant claims that this difference impliedly indicates legislative recognition that the legislature in 1927 had granted to CL&P the right to provide gas services within the area in which the plaintiff had the right to provide gas services. We disagree. We are unable to conclude that the added explicit protection of preexisting gas franchises in 1951 provides a sufficient basis upon which to conclude that the 1927 special act had granted to CL&P the right to provide gas services in Preston. The legislative history in 1951 is silent as to whether the explicit protection of preexisting gas rights was a response to the 1927 special act, as the defendant claims, or whether it was merely a clarification of the 1919 special act, as the plaintiff claims. See Conn. Joint Standing Committee Hearings, Cities and Boroughs, Pt. 2, 1951 Sess., pp. 419-26. The legislative intent in 1927 was clear. Ambiguous legislative action in 1951 is an insufficient basis upon which to override the legislative intent in 1927.

       Moreover, the plaintiffs gas franchise is not exclusive and the legislature is at all times free to grant to the defendant or any other company a gas franchise in Preston.

       Even if we had concluded that Preston is a separate entity and that Special Act No. 195 (1927) granted CL&P the right to supply gas in Preston, we nevertheless would conclude that Special Act No. 218 (1955) did not give the defendant the right, by the purchase of CL&P’s rights, to supply gas in Preston. Only four years earlier, the legislature had made clear that no company could purchase the right to sell gas “within the territory in which the [plaintiff] has the right to sell or distribute gas or electricity.” 26 Spec. Acts 459, No. 573, c. XII, § 26 (1951). The defendant claims that the 1955 special act repealed the 1951 special act by implication because the legislature granted the defendant a general authority to purchase the right to provide gas services from other gas companies. We have previously held that a “special and local statute, providing for a particular case or class of cases, is not affected by a statute general in its terms, broad enough to include cases embraced in the special law, unless the intent to repeal or alter is manifest,”; Metropolitan District v. Barkhamsted, 199 Conn. 294, 305, 507 A.2d 92 (1986); and 1 hat, “[rjepeal by implication will not be inferred if legislative ads can be reconciled and given concurrent effect.” Putala v. DePaolo, 225 Conn. 378, 388, 623 A.2d 989 (1993). In this case, there is no manifestation of an intent by the legislature to repeal the 1951 special act and we can give both the 1951 and 1955 special acts compatible, concurrent effect by treating the; 1951 special act as a specific statutory exception to the general grant of authority to the defendant,.


source: Caselaw Access Project

author: PALMER, J. BERDON, J.,

license: Public Domain

text:
    CHESNEL FLORESTAL v. GOVERNMENT EMPLOYEES INSURANCE COMPANY JUDY MERZULIE v. GOVERNMENT EMPLOYEES INSURANCE COMPANY
    (14953)
    (14954)
    Borden, Berdon, Katz, Palmer and Landau, Js.

      Argued November 2, 1995
    decision released March 19, 1996

      Wesley M. Malowitz, with whom, on the brief, was Russell J. Berkowitz, for the appellants (plaintiffs).

      J. Kevin Golger, for the appellee (defendant).
   PALMER, J.

The principal issue raised by these consolidated appeals is whether we should overrule our decision in American Motorists Ins. Co. v. Gould, 213 Conn. 625, 569 A.2d 1105 (1990), overruled in part on other grounds, Covenant Ins. Co. v. Coon, 220 Conn. 30, 37, 594 A.2d 977 (1991), wherein we concluded that a tortfeasor is not underinsured within the meaning of General Statutes (Rev. to 1989) § 38-175c (b) (2), now recodified as § 38a-336 (e), unless the aggregate limits of the tortfeasor’s liability insurance coverage applicable at the time of the accident are less than the underinsured motorist coverage available to the claimant. We now reaffirm our holding in Gould.

The facts relevant to this appeal are undisputed. The plaintiffs, Chesnel Florestal and Judy Merzulie, were traveling in an automobile owned and operated by Florestal when they sustained injuries and other damages stemming from a multivehicle traffic accident. The driver of the vehicle that caused the accident (tortfeasor) was insured under a liability policy that provided coverage of up to $20,000 per person and $40,000 per accident. The tortfeasor’s liability insurer paid $20,000 to a claimant not a party to this action, and the remaining $20,000 was evenly divided among four other claimants, including the two plaintiffs here, each of whom received $5000.

At the time of the accident, Florestal was covered under an insurance policy issued to him by the defendant, Government Employees Insurance Company, that provided underinsured motorist coverage of $20,000 per person and $40,000 per accident. Because that policy also covered passengers in the vehicle owned by Florestal, Merzulie was eligible for underinsured motorist benefits under the policy, as well. After settling with the tortfeasor’s insurer, the plaintiffs, each of whom sustained damages exceeding $5000, submitted claims to the defendant for underinsured motorist benefits. The defendant denied coverage in both cases, and the claims were submitted to arbitration.

The arbitrator concluded that the plaintiffs were entitled to underinsured motorist benefits pursuant to § 38a-336 because the payments that they had received from the tortfeasor’s insurance carrier were less than the amount of the underinsured motorist coverage available under the policy issued by the defendant. The arbitrator also found that Merzulie and Florestal were entitled to damage awards totaling $19,566.49 and $14,015.21, respectively, the awards to be reduced by the $5000 payment already made to each of them by the tortfeasor’s insurer.

The plaintiffs filed applications in the Superior Court to confirm the arbitration awards and the defendant filed applications to vacate the awards. The trial court concluded that under the construction of § 38a-336 (e) adopted by this court in American Motorists Ins. Co. v. Gould, supra, 213 Conn. 625, a vehicle is underinsured only if the total liability limits of the tortfeasor’s policy are less than the limits of the claimant’s underinsured motorist coverage, regardless of whether some or all of the tortfeasor’s coverage has been exhausted due to payments to other injured claimants. Because the limits of Florestal’s underinsured motorist coverage did not exceed the limits of the tortfeasor’s liability policy, the trial court further concluded that the tortfeasor was not underinsured within the meaning of § 38a-336 and, accordingly, granted the defendant’s applications to vacate the arbitration awards.

The plaintiffs appealed from the judgments of the trial court to the Appellate Court, and we transferred the appeals to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). On appeal, the plaintiffs contend that we should reconsider and overrule our holding in Gould in favor of the construction of § 38a-336 (e) adopted by the arbitrator. Alternatively, the plaintiffs maintain, first, that even if we refuse to overrule Gould, this case is distinguishable from Gould on its facts and, second, that application of our holding in Gould to the facts of this case renders § 38a-336 violative of the equal protection clauses of the federal and state constitutions. We are not persuaded by any of these claims and, therefore, we affirm the judgments of the trial court.

I

We first address the plaintiffs’ contention that Gould should be overruled as wrongly decided. In Gould, the claimant and three others were injured when the automobile in which they were passengers was involved in a one-car accident. The driver of the automobile was insured under liability policies with limits totaling $140,000. By agreement of the parties, the $140,000 was allocated among the four passengers, with the claimant receiving $21,000. Because the claimant’s damages exceeded $21,000, she thereafter sought payment under the underinsured motorist provisions of certain applicable policies, including the driver’s liability policy. The arbitrator awarded the claimant underinsured motorist benefits, and the driver’s insurance carrier filed an application in the Superior Court to vacate the award. The trial court denied the insurer’s application and rendered judgment for the claimant. In reversing the judgment of the trial court, we rejected the claimant’s argument that only the amount actually paid to her under the tortfeasor’s liability policy should be considered in determining whether the operator of the automobile was underinsured. We concluded, rather, that in light of the plain language of § 38a-336 and the construction afforded similarly worded statutes in other jurisdictions, underinsured motorist benefits are not recoverable under our statutory scheme unless the limits of the underinsured motorist coverage available to the claimant exceed the total amount of liability insurance available to satisfy claims against the tortfeasor. American Motorists Ins. Co. v. Gould, supra, 213 Conn. 628-33; see also Covenant Ins. Co. v. Coon, supra, 220 Conn. 34.

The plaintiffs acknowledge that, if this case is not factually distinguishable from Gould, their claim for underinsured motorist benefits is foreclosed under the construction of § 38a-336 that we adopted in Gould. They maintain, however, that Gould was incorrectly decided and that benefits are recoverable under § 38a-336 when the limits of the claimant’s underinsured motorist coverage exceed the amount available to the claimant under the tortfeasor’s liability policy. In support of this claim, the plaintiffs contend that our holding in Gould: (1) is contrary to the intent of the legislature; (2) leads to arbitrary results; (3) is not consistent with the reasonable expectations of Connecticut insurance consumers; (4) is inconsistent with our other recent case law; and (5) will result in an increase in litigation.

Before addressing these arguments, it must be noted that we are constrained by principles of stare decisis to adhere to the precedent set by Gould in the absence of compelling reason to abandon it. See, e.g., State v. Somerville, 214 Conn. 378, 384-85, 572 A.2d 944 (1990). “Stare decisis, although not an end in itself, serves the important function of preserving stability and certainty in the law. Accordingly, ‘a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it. Maltbie, Conn. App. Proc., p. 226.’ Herald Publishing Co. v. Bill, 142 Conn. 53, 62, 111 A.2d 4 (1955); see also State v. Somerville, [supra, 384-85]; White v. Burns, 213 Conn. 307, 335-36, 567 A.2d 1195 (1990).” Kluttz v. Howard, 228 Conn. 401, 406, 636 A.2d 816 (1994). “This is especially true when the precedent involved concerns the interpretation or construction of a statute.” Herald Publishing Co. v. Bill, supra, 62. Bearing in mind the plaintiffs’ heavy burden, we now turn to their arguments in support of overruling Gould.

The plaintiffs first claim that our construction of § 38a-336 (e) is contrary to the intent of the legislature. Because the legislature has defined an underinsured motor vehicle as one with applicable policy limits less in amount than the injured victim’s uninsured motorist limits; see footnote 1; the plaintiffs do not dispute that our holding in Gould is supported by a literal reading of § 38a-336 (e). The plaintiffs contend, however, that a strict construction of § 38a-336 (e) is inconsistent with the legislative purpose underlying the enactment of our uninsured and underinsured motorist statutes, which, they assert, is to ensure “that automobile accident victims receive fair, just and reasonable compensation for their injuries.”

It is true, broadly stated, that the purpose of underinsured motorist coverage “ ‘is to protect the named insured and other additional insureds from suffering an inadequately compensated injury caused by an accident with an inadequately insured automobile.’ ” Travelers Ins. Co. v. Kulla, 216 Conn. 390, 398, 579 A.2d 525 (1990). It does not follow, however, that the legislature, in providing for underinsured motorist coverage, necessarily intended to guarantee that each and every accident victim would be fully, or even adequately, compensated for injuries caused by an underinsured motorist. As we observed in Gould, “[cjourts construing statutes like [§ 38a-336] that compare uninsured motorist coverage limits with tortfeasor liability limits have generally held that the legislative objective was simply to give an insured who is injured in an accident the same resource he would have had if the tortfeasor had carried liability insurance equal to the amount of the insured’s uninsured motorist coverage. ‘Where an underinsured motor vehicle is statutorily defined as an insured motor vehicle with applicable liability limits less in amount than the injured person’s uninsured motorist’s limits, it is clear that the underinsured motorist coverage is not applicable if the insured person’s uninsured motorist limits are equal to, or less than, the tortfeasor’s liability limits.’ 3 I. Schermer, Automobile Liability Insurance [1994 Rev.] § 35.06. . . . The fact that [the tortfeasor’s] liability coverage has . . . been exhausted because of multiple claims does not change the effect of the statute in activating uninsured motorist coverage only when the liability insurance of the tortfeasor is less in amount.” (Emphasis added.) American Motorists Ins. Co. v. Gould, supra, 213 Conn. 632-33. Moreover, the plaintiffs’ argument finds no support in the legislative history of § 38a-336, which is devoid of any indication that the legislature intended for subsection (e) to be construed in a manner contrary to its plain language.

Furthermore, in 1993, several years after our decision in Gould, the legislature enacted the Automobile Insurance Reform Act; Public Acts 1993, No. 93-297; which, among other things, requires any insurance company licensed to sell automobile liability insurance in this state to offer a type of underinsured motorist coverage known as “underinsured motorist conversion coverage.” See General Statutes § 38a-336a. This option, which is available for an additional premium to consumers who wish to purchase it in lieu of standard underinsured motorist coverage under § 38a-336, provides enhanced protection to victims of underinsured motorists because, in contrast to coverage under § 38a-336, it is activated when “the sum of all payments received by or on behalf of the covered person from or on behalf of the tortfeasor are less than the fair, just and reasonable damages of the covered person. (Emphasis added.) General Statutes § 38a-336a (e). By retaining the standard option under § 38a-336 and providing for another, different kind of underinsured motorist coverage under § 38a-336a, it is apparent that the legislature chose to address the coverage issue raised in Gould not by overruling our holding therein but, rather, by mandating the availability of a more comprehensive, and more expensive, optional form of underinsured motorist coverage.

Moreover, the construction of § 38a-336 (e) urged by the plaintiffs is identical to the definition of underinsured motor vehicle contained in § 38a-336a (e). See footnote 3. Thus, under the plaintiffs’ construction of § 38a-336 (e), there would have been no reason for the legislature to have established an entirely new and separate form of underinsured motorist coverage under § 38a-336a. Furthermore, under § 38a-336a (a), underinsured motorist conversion coverage shall be available at a premium greater than that charged for coverage pursuant to § 38a-336. Under the plaintiffs’ interpretation of § 38a-336, however, such coverage is identical to the coverage now available under § 38a-336a; consequently, there would be no cause for anyone to purchase underinsured motorist conversion coverage. The legislature could not have intended such a bizarre result. See State v. Spears, 234 Conn. 78, 92, 662 A.2d 80 (1995) (principles of statutory construction require that we not construe a statute in a manner that will lead to absurd consequences or bizarre results); see also Simms v. Warden, 229 Conn. 178, 187-88, 640 A.2d 601 (1994) (because the legislature is presumed to have created a harmonious and consistent body of law, we read statutes together when they relate to the same subject matter). Accordingly, we are unpersuaded by the plaintiffs’ contention that our holding in Gould is contrary to the intent of the legislature.

The plaintiffs’ second argument, closely related to their first, is that our construction of § 38a-336 must be incorrect because it leads to arbitrary and unjust results. In support of this claim, the plaintiffs point out that they each could have recovered up to $20,000 under the underinsured motorist provisions of Florestal’s policy had the per person limits of the tortfeasor’s policy been even one dollar less. The plaintiffs also maintain that it is similarly unfair to deprive an accident victim of underinsured motorist benefits simply for failing to assert a claim against the tortfeasor’s liability policy before that policy’s limits have been exhausted by another claimant or claimants. Although certain inequities may arise in some underinsured motorist cases involving multiple claimants, redress from any such unfairness must be sought from the legislature, not from the courts, in light of the clearly expressed intent of the legislature. See Serrano v. Aetna Ins. Co., 233 Conn. 437, 455 n.25, 664 A.2d 279 (1995); Hotkowski v. Aetna Life & Casualty Co., 224 Conn. 145, 151-52, 617 A.2d 451 (1992).

Furthermore, as we have previously indicated, the purpose of underinsured motorist coverage is neither to guarantee full compensation for a claimant’s injuries nor to ensure that the claimant will be eligible to receive the maximum payment available under any applicable policy. Indeed, “underinsured motorist protection is not intended to provide a greater recovery than would have been available from the tortfeasor . . . .” Smith v. Safeco Ins. Co. of America, 225 Conn. 566, 573, 624 A.2d 892 (1993). Rather, “[t]he public policy of § 38a-336 is to give a personal injury claimant access to insurance protection to compensate for the damages that would have been recoverable if the underinsured motorist had maintained an adequate policy of liability insurance. Bodner v. United Services Automobile Assn., 222 Conn. 480, 499, 610 A.2d 1212 (1992); Harvey v. Travelers Indemnity Co., 188 Conn. 245, 249, 449 A.2d 157 (1982).” (Emphasis added.) Smith v. Safeco Ins. Co. of America, supra, 573. The construction of § 38a-336 that we adopted in Gould is consistent with this public policy because the plaintiffs were injured by a tortfeasor who had, in fact, maintained a policy of liability insurance “equal to the amount of [the plaintiffs’] uninsured motorist coverage.” American Motorists Ins. Co. v. Gould, supra, 213 Conn. 632. It is apparent, therefore, that the plaintiffs are denied a full recovery in this case not because the tortfeasor was inadequately insured but, rather, because there were multiple claimants who sought to recover under the tortfeasor’s liability policy. Thus, we are constrained to adhere to our holding in Gould despite the unfortunate fact that, under Gould, some accident victims with underinsured motorist coverage will be denied satisfactory compensation for their injuries.

The plaintiffs next argue that our construction of § 38a-336 is inconsistent with the reasonable expectations of insurance consumers in this state. This argument is inapposite. While “[i]t is a basic principle of insurance law that policy language will be construed as laymen would understand it”; (emphasis added) Cody v. Remington Electric Shavers, 179 Conn. 494, 497, 427 A.2d 810 (1980); no similar rule applies to our construction of legislative enactments. Rather, “[t]he fundamental objective of statutory construction is to ascertain and give effect to the apparent intent of the legislature.” (Emphasis added; internal quotation marks omitted.) Concept Associates, Ltd. v. Board of Tax Review, 229 Conn. 618, 622, 642 A.2d 1186 (1994). Moreover, because legislative enactments are presumed to reflect the will of the people, it cannot seriously be argued that the clearly expressed intent of the legislature is inconsistent with the reasonable expectations of the public. Because we have concluded that our construction of § 38a-336 accurately reflects the intent of the legislature, the plaintiffs’ argument must fail.

The plaintiffs also contend that several of our recent cases, including General Accident Ins. Co. v. Wheeler, 221 Conn. 206, 603 A.2d 385 (1992), Stephan v. Pennsylvania General Ins. Co., 224 Conn. 758, 621 A.2d 258 (1993), and Buell v. American Universal Ins. Co., 224 Conn. 766, 621 A.2d 262 (1993), signal a departure from our holding in Gould. The plaintiffs misconstrue those cases.

In General Accident Ins. Co. v. Wheeler, supra, 221 Conn. 213, we held that underinsured motorist coverage is triggered in circumstances involving multiple tortfeasors when all of the liability policies applicable to one of the tortfeasors are exhausted; the claimant need not exhaust the liability policies of every tortfeasor. Wheeler, however, did not involve multiple claimants; the sole issue raised in Wheeler was “whether an insured, where there is more than one tortfeasor responsible for the accident, may recover under his or her underinsured motorist policy before first exhausting the liability insurance policies of all the tortfeasors.” Id., 207. Because we did not consider in that case the question of whether the tortfeasor’s vehicle was underinsured within the meaning of § 38a-336, the plaintiffs’ reliance on Wheeler is misplaced.

The plaintiffs also assert that our decisions in Stephan v. Pennsylvania General Ins. Co., supra, 224 Conn. 758, and Buell v. American Universal Ins. Co., supra, 224 Conn. 766, suggest that the determination of whether underinsured motorist coverage is available shall be based on the amount actually paid to the claimant under the tortfeasor’s policy, rather than on the policy’s liability limits. This contention is also unfounded. Both Stephan and Buell involved the issue of the amount by which a payment of underinsured motorist benefits shall be reduced to account for other payments received by the claimant or paid out by the insurer. Because neither of those cases considered the threshold question of when underinsured motorist coverage is triggered; see Covenant Ins. Co. v. Coon, supra, 220 Conn. 36; they provide no support for the plaintiffs’ contention.

The plaintiffs’ final argument is that adherence to our statutory construction in Gould will dramatically increase our court dockets by forcing undercompensated claimants like themselves to seek a judgment directly against the tortfeasor. There has been no flood of litigation since Gould was decided six years ago, however, and there is no reason to expect that there will be in the future. Furthermore, if there had been an influx of cases after Gould, that fact alone would not necessarily persuade us that we had misconstrued § 38a-336, for the legislature is free to enact legislation that is likely to result in additional litigation.

We are satisfied, therefore, that Gould was correctly decided. Accordingly, we decline to overrule it.

II

The plaintiffs next argue that if we refuse to overrule Gould, we may nevertheless reach a different result in this case because it is factually distinguishable from Gould. In support of this contention, the plaintiffs point out that in Gould, the claimant was seeking underinsured motorist coverage under a policy issued to the tortfeasor, whereas in this case, the plaintiffs seek to trigger the underinsured motorist provisions of the policy issued to one of the claimants, Florestal. The plaintiffs have provided no reason, and we know of none, why this factual difference warrants a different construction of the statute. Because this case is legally indistinguishable from Gould, the plaintiffs’ argument is unavailing.

III

The plaintiffs’ final claim is that § 38a-336, as applied in this case, violates the federal and state equal protection clauses; U.S. Const., amend. XIV; Conn. Const., art. I, § 20; because, under the statutory construction adopted in Gould, the plaintiffs fare worse than would similarly situated claimants injured by a motorist carrying no insurance. The plaintiffs concede that this issue was not raised below, but ask us to “exercise our appellate discretion in order to consider the issue, because it has been fully briefed here and is important to our underinsured motorist coverage legislative scheme.” Travelers Ins. Co. v. Kulla, supra, 216 Conn. 397 n.5. We agree that the issue merits consideration, but are not persuaded by the plaintiffs’ argument.

In order to analyze the constitutionality of this statute, we must first detail the principles applicable to equal protection analysis. “When a statute is challenged on equal protection grounds, whether under the United States constitution or the Connecticut constitution, the reviewing court must first determine the standard by which the challenged statute’s constitutional validity will be determined. If, in distinguishing between classes, the statute either intrudes on the exercise of a fundamental right or burdens a suspect class of persons, the court will apply a strict scrutiny standard wherein the state must demonstrate that the challenged statute is necessary to the achievement of a compelling state interest. ... If the statute does not touch upon either a fundamental right or a suspect class, its classification need only be rationally related to some legitimate government purpose in order to withstand an equal protection challenge. . . .” (Internal quotation marks omitted.) Benjamin v. Bailey, 234 Conn. 455, 477, 662 A.2d 1226 (1995).

“Under the rational basis test, [t]he court’s function ... is to decide whether the purpose of the legislation is a legitimate one and whether the particular enactment is designed to accomplish that puipose in a fair and reasonable way.” (Internal quotation marks omitted.) Circuit-Wise, Inc. v. Commissioner of Revenue Services, 215 Conn. 292, 300, 576 A.2d 1259 (1990). “In general, the Equal Protection Clause is satisfied so long as there is a plausible policy reason for the classification, see United States Railroad Retirement [Board] v. Fritz, 449 U.S. 166, 174, 179 [101 S. Ct. 453, 66 L. Ed. 2d 368 (1980), reh. denied, 450 U.S. 960, 101 S. Ct. 1421, 67 L. Ed. 2d 385 (1981)], the legislative facts on which the classification is apparently based rationally may have been considered to be true by the government decisionmaker, see Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464 [101 S. Ct. 715, 66 L. Ed. 2d 659, reh. denied, 450 U.S. 1027, 101 S. Ct. 1735, 68 L. Ed. 2d 222] (1981), and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational, see Cleburne v. Cleburne Living Center, Inc., [473 U.S. 432, 446, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985)].” Nordlinger n. Hahn, 505 U.S. 1, 11, 112 S. Ct. 2326, 120 L. Ed. 2d 1 (1992).

The plaintiffs’ equal protection claim is predicated on the assertion that § 38a-336 creates a class of accident victims who, in certain circumstances involving multiple claimants, are denied underinsured motorist coverage even though their injuries are not fully compensated under the tortfeasor’s liability policy. Assuming that this group of accident victims constitutes a cognizable classification for equal protection purposes, the plaintiffs have not established that the legislative policy underlying their purportedly disparate treatment is unreasonable. As we have previously observed, the purpose of § 38a-336 is to “give a personal injury claimant access to insurance protection to compensate for the damages that would have been recoverable if the under-insured motorist had maintained an adequate policy of liability insurance. ” Smith v. Safeco Ins. Co. of America, supra, 225 Conn. 573. Section 38a-336 reasonably furthers this legitimate public policy despite the fact that some accident victims are denied underinsured motorist coverage even though their injuries have not been fully compensated.

“ ‘[Ejqual protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices. In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.’ ” D. A. Pincus & Co. v. Meehan, 235 Conn. 865, 879, 670 A.2d 1278 (1996), quoting Federal Communications Commissions. Beach Communications, Inc., 508 U.S. 307, 313, 113 S. Ct. 2096, 124 L. Ed. 2d 211 (1993); see also Broadley v. Board of Education, 229 Conn. 1,8-10, 639 A.2d 502 (1994). Furthermore, those who challenge a statute on constitutional grounds bear the heavy burden of demonstrating the statute’s invalidity beyond a reasonable doubt. D. A. Pincus & Co. v. Meehan, supra, 879-80. Because the classification allegedly created under § 38a-336 is rationally related to a legitimate state purpose, the plaintiffs cannot sustain their burden of estabhshing that § 38a-336 violates equal protection guarantees.

The judgments are affirmed.

In this opinion BORDEN, KATZ and LANDAU, Js., concurred.

BERDON, J.,

concurring. I join the opinion of the court. I write separately only to indicate that, in my view, Gould, and Coon were wrongly decided by this court. I agree with the plaintiff that the application of Gould and Coon can lead to bizarre and unjust results. In such circumstances, even when a statute is clear on its face, this court has resorted to statutory construction in order to avoid such mischief. State v. Cain, 223 Conn. 731, 744, 613 A.2d 804 (1992); State v. Siano, 216 Conn. 273, 278, 579 A.2d 79 (1990) (“[i]t is . . . a rule of statutory construction that those who promulgate statutes or rules do not intend to promulgate statutes or rules that lead to absurd consequences or bizarre results”). I am, however, constrained to join the court’s opinion today for two reasons.

First, Gould and Coon were decided more than four years ago during which time the legislature visited and amended General Statutes § 38a-336 on several occasions, but failed to legislatively overrule this court’s interpretation of the statute. Second, in 1993, the legislature, which was aware of the issue, chose to ameliorate this problem only to a limited extent by requiring insurers to offer underinsured motorist conversion coverage. General Statutes § 38a-336a. Therefore, not only do principles of stare decisis guide me today, but constitutional respect for a coordinate branch of government requires my concurrence.

       General Statutes § 38a-336 (e) provides: “For the purposes of this section, an ‘underinsured motor vehicle’ means a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made under subsection (b) of this section.”
      At all times relevant to this appeal, the above subsection was codified as § 38a-336 (d). In 1993, § 38a-336 was amended by No. 93-297 of the 1993 Public Acts, which added a new subsection (d), causing the previous subsection (d) to be relettered as subsection (e). Because the content of the new subsection (e) and the old subsection (d) are identical, all references in this opinion are to the current statutory provisions.

       The Appellate Court granted the plaintiffs’ motion to consolidate the two cases for appeal.

       General Statutes § 38a-336a provides: “Underinsured motorist conversion coverage, (a) Each insurer licensed to write automobile liability insurance in this state shall offer, for an additional premium, underinsured motorist conversion coverage with limits in accordance with section 38a-336. The purchase of such underinsured motorist conversion coverage shall be in lieu of underinsured motorist coverage pursuant to section 38a-336.
      “(b) Such coverage shall provide for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of underinsured motor vehicles.
      “(c) Each insurer shall be obligated to pay to the insured, up to the limits of the policy’s underinsured motorist conversion coverage, after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements. If the insured purchases such underinsured motorist conversion coverage, then in no event shall the underinsured motorist coverage be reduced on account of any payment by or on behalf of the tortfeasor or by any third party.
      “(d) The selection of coverage under this section shall apply to all subsequent renewals of coverage and to all policies or endorsements which extend, change, supersede or replace an existing policy issued to the named insured, unless changed in writing by any named insured.
      “(e) For purposes of this section, an ‘underinsured motor vehicle’ means a motor vehicle with respect to which the sum of all payments received by or on behalf of the covered person from or on behalf of the tortfeasor are less than the fair, just and reasonable damages of the covered person.
      “(f) The provisions of this section shall apply to all new and renewal policies issued on or after January 1, 1994.” This statute includes amendments pursuant to Public Acts 1994, No. 94-243, §§ 5 and 6.

       General Statutes § 38a-336a (c) also provides in part that “ [i]f the insured purchases . . . underinsured motorist conversion coverage, then in no event shall the underinsured motorist coverage be reduced on account of any payment by or on behalf of the tortfeasor or by any third party.”

       The plaintiffs correctly assert that under our construction of § 38a-336, they would have been able to obtain a greater recovery had the tortfeasor been uninsured. They further maintain that this result is inconsistent with the legislature’s principal reason for amending our uninsured motorist statutes in 1979; Public Acts 1979, No. 79-235; to include underinsured motorist coverage, namely, “to remedy the ‘anomalous situation’ . . . where an injured party could find himself in a better position if the tortfeasor had no liability insurance than if he had only the statutory minimum amount.” Nationwide Ins. Co. v. Gode, 187 Conn. 386, 390-91, 446 A.2d 1059 (1982), overruled in part on other grounds, Covenant Ins. Co. v. Coon, 220 Conn. 30, 594 A.2d 977 (1991). As we have indicated, however, we may not presume that the legislature sought to address every possible anomalous situation that may arise under the statutory scheme governing uninsured and underinsured motorist coverage. Moreover, we must construe § 38a-336 (e) “without reference to whether [we think that provision] would have been or could be improved by the inclusion of other provisions.” Battersby v. Battersby, 218 Conn. 467, 471, 590 A.2d 427 (1991); see also Simonette v. Great American Ins. Co., 165 Conn. 466, 338 A.2d 453 (1973). Accordingly, our duty is not to second guess the wisdom of a clear expression of legislative will but, rather, to ascertain and give effect to the intent of the legislature. See Gonsalves v. West Haven, 232 Conn. 17, 26, 653 A.2d 156 (1995). In light of the plain language of § 38a-336 (e) and the legislature’s apparent validation of our interpretation of that statutory subsection as reflected in its enactment of § 38a-336a, we reject the plaintiffs’ argument that Gould must be overruled in order to avoid an anomalous result in this case.

       Of course, in that instance, the plaintiffs would still recover under the tortfeasor’s liability policy until that policy was exhausted, and any such recovery would be reduced by amounts received from the tortfeasor’s policy. Moreover, if there were no other claimants under the tortfeasor’s policy, the plaintiffs would recover no more than one dollar under the defendant’s underinsured motorist policy.

       The fourteenth amendment to the United States constitution provides in relevant part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
      Article first, § 20, of the Connecticut constitution, as amended, provides: “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability.”

       The plaintiffs do not contend that they are entitled to any greater protection under the equal protection provisions of the state constitution than they are under the analogous provisions of the federal constitution. For the purposes of this appeal, therefore, we treat those provisions as embodying the same level of protection.

       We need not, and do not, decide whether § 38a-336 creates an identifiable category or class of persons for purposes of equal protection analysis.

        American Motorists Ins. Co. v. Gould, 213 Conn. 625, 569 A.2d 1105 (1990), overruled in part on other grounds, Covenant Ins. Co. v. Coon, 220 Conn. 30, 594 A.2d 977 (1991).

        Covenant Ins. Co. v. Coon, 220 Conn. 30, 594 A.2d 977 (1991).

       Public Acts 1993, No. 93-77, § 2; Public Acts 1993, No. 93-297, § 1; Public Acts, Spec. Sess., May 25, 1994, No. 94-1, §§ 35, 36.


text:
    JAMES W. LASH, ADMINISTRATOR (ESTATE OF MICHAEL LASH) v. AETNA CASUALTY AND SURETY COMPANY ET AL.
    (15223)
    Borden, Berdon, Katz, Palmer and Landau, Js.
    Argued November 2, 1995
    decision released March 19, 1996

      David T. Grudberg, with whom, on the brief, was Howard A. Jacobs, for the appellant (plaintiff).

      Philip F. von Kuhn and Raymond T. DeMeo, with whom were Ruth Beardsley and Frank J. Forgione, for the appellees (defendants).
   PALMER, J.

The principal issue raised by this certified appeal is whether the construction of General Statutes § 38a-336 (e) that we adopted in American Motorists Ins. Co. v. Gould, 213 Conn. 625, 569 A.2d 1105 (1990), and Covenant Ins. Co. v. Coon, 220 Conn. 30, 594 A.2d 977 (1991), was erroneous and should be abandoned. Because we conclude that neither Gould nor Coon was wrongly decided we decline to overrule them.

The following facts are undisputed. The plaintiff, James Lash, is the administrator of the estate of Michael Lash, who was killed on October 21,1988, while he was a passenger in a vehicle that was struck head-on by a vehicle driven by Mark Rondo. Rondo and the operator of the vehicle occupied by Lash, the plaintiffs decedent, were also killed, and several passengers in each of the two vehicles sustained injuries. Rondo’s vehicle was covered by a $500,000 liability policy under which the plaintiff received payments totaling $118,373.50. The remainder of Rondo’s liability coverage was exhausted by other injured claimants.

The plaintiffs decedent was insured under certain underinsured motorist policies issued by the defendant insurance carriers. The defendants and the amount of underinsured motorist coverage provided by each include: Aetna Casualty and Surety Company, $500,000; Allstate Insurance Company, $200,000; Hartford Casualty Insurance Company, $100,000; Liberty Mutual Insurance Company, $25,000; and General Accident Insurance Company, $20,000. The plaintiff, in his capacity as administrator, sought recovery under each of these policies, and the claim was submitted to arbitration. The arbitration panel, following our decisions in Covenant Ins. Co. v. Coon, supra, 220 Conn. 30, and American Motorists Ins. Co. v. Gould, supra, 213 Conn. 625, concluded that the plaintiff was not entitled to underinsured motorist benefits under any one of the policies issued by the defendants because none of them contained underinsured motorist limits greater than the liability limits of Rondo’s policy. The trial court, DeMayo, J., denied the plaintiffs application to vacate the arbitration award and rendered judgment for the defendants. The Appellate Court, in a per curiam decision, affirmed the judgment of the trial court; Lash v. Aetna Casualty & Surety Co., 36 Conn. App. 623, 652 A.2d 526 (1995); and this certified appeal followed. We now affirm the judgment of the Appellate Court.

I

The plaintiff maintains that he is eligible to recover underinsured motorist benefits up to $845,000 under the policies issued by the defendants. The plaintiffs contention is predicated on two separate but interrelated claims: first, a tortfeasor is underinsured within the meaning of § 38a-336 (e) if the limits of the tortfeasor’s liability insurance are less than the total amount of underinsured motorist coverage available to the claimant; and second, a claimant is eligible for underinsured motorist benefits if the payments actually received by the claimant under the tortfeasor’s policy are less than the limits of the claimant’s underinsured motorist coverage. The plaintiff concedes that his first claim is foreclosed by our holding in Coon, and that his second claim is foreclosed by our holding in Gould. He asserts, however, that both of those decisions were wrongly decided and should be overruled. We disagree.

A

We address the plaintiffs second claim first because it requires little discussion. In Florestal v. Government Employees Ins. Co., 236 Conn. 299, 673 A.2d 474 (1996), also released today, we rejected an argument identical to the plaintiffs claim that our holding in American Motorists Ins. Co. v. Gould, supra, 213 Conn. 625, should be abandoned. For the reasons set forth in Florestal, we reaffirm the construction of § 38a-336 (e) that was adopted by this court in Gould.

B

The plaintiff also asserts that we should overrule Covenant Ins. Co. v. Coon, supra, 220 Conn. 30, in which we concluded that underinsured motorist coverage under separate policies covering the claimant may not be aggregated or “stacked” for purposes of determining whether a vehicle is underinsured within the meaning of § 38a-336 (e). At the outset, we note that principles of stare decisis militate against the plaintiffs claim that we should abandon our holding in Coon. “Stare decisis, although not an end in itself, serves the important function of preserving stability and certainty in the law. Accordingly, a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it. . . . This is especially true when the precedent involved concerns the interpretation or construction of a statute.” (Internal quotation marks omitted.) Florestal v. Government Employees Ins. Co., supra, 236 Conn. 305.

In Coon, the tortfeasor was insured under a liability policy that provided coverage of $25,000 per person and $50,000 per accident. The claimant was insured under two separate uninsured motorist policies, one that provided $20,000 of underinsured motorist coverage and another with underinsured motorist limits of $50,000. In concluding that § 38a-336 (e) unambiguously prohibited the aggregation of the underinsured motorist limits of the two policies in determining whether the tortfeasor’s vehicle was underinsured, we explained that “[t]he application of § 38a-336 requires two distinct steps: (1) determining whether a vehicle is in fact under-insured, so that coverage is available; and (2) calculating the amount of the actual award due the victim.” Covenant Ins. Co. v. Coon, supra, 220 Conn. 36. As to the first step, we concluded that while § 38a-336 “does not prohibit stacking of coverage in determining the total amount of the award due the victim . . . [t]he statute is unequivocal, however, in establishing the mechanism for determining whether a vehicle is under-insured, and it specifically limits consideration of underinsured motorist coverage to each policy separately.” Id., 37. Thus, “the analysis directed by § 38a-336 requires a comparison between the aggregate of liability limits available to the victim against the under-insured motorist limits in each single policy against which the victim has a claim.” (Emphasis added.) Id., 36.

The plaintiff claims, contrary to our conclusion in Coon, that § 38a-336 (e) is not clear on its face and, therefore, that our reliance on the statutory language was misplaced. The plaintiff further asserts that our construction of § 38a-336 (e) does not accurately reflect the intent of the legislature because it leads to results that are incompatible with the purpose underlying the enactment of our uninsured and underinsured motorist statutes. We are not persuaded by the plaintiffs arguments.

As in every case involving the construction of a statute, we begin our analysis with a review of the pertinent statutory language. The plaintiffs assertion to the contrary notwithstanding, there is nothing ambiguous in the language of § 38a-336 (e): the word “policies” refers to the insurance carried by the tortfeasor and the word “policy” refers to the underinsured motorist coverage available to the claimant. We cannot assume that the legislature, in enacting a statutory provision that uses a particular word in the plural and then the same word in the singular, intended for two different words to have the same meaning, especially when, as here, the two different terms are used in the same sentence and refer to two different things. We must presume, rather, that the legislature’s use of the singular in referring to the “uninsured motorist portion of the policy against which claim is made” and its use of the plural in referring to “the sum of the limits of liability under all bodily injury liability bonds and insurance policies” was deliberate and purposeful. (Emphasis added.) General Statutes § 38a-336 (e). We see no basis, therefore, to conclude that § 38a-336 (e) is not clear on its face.

The plaintiff contends that even if § 38a-336 (e) is unambiguous, we must resort to other aids to ascertain the intent of the legislature because a literal interpretation of that subsection leads to unfair and arbitrary results. See, e.g., State v. Cain, 223 Conn. 731, 744, 613 A.2d 804 (1992) (“even if a statute is clear on its face, if a literal interpretation of that statute would lead to unworkable results, resort to other aids to determine legislative intent is appropriate”). The plaintiff offers several hypothetical fact patterns to support his argument that our holding in Coon leads to unjust results. For example, he posits a case in which two insureds, A and B, sustain injuries in an automobile accident that is caused by a tortfeasor with $150,000 of liability insurance. Both A and B have underinsured motorist coverage totaling $200,000, but A is covered under a single policy with underinsured motorist limits of $200,000 and B is covered under two policies with underinsured motorist limits of $100,000 each. Under Coon, A is eligible for underinsured motorist benefits because the limits of his underinsured motorist policy are greater than the limits of the tortfeasor’s liability policy. By contrast, B is not eligible to recover underinsured motorist benefits because the limits of the tortfeasor’s liability policy are greater than the limits of each of the underinsured motorist policies under which B is covered. The plaintiff claims that since both A and B have the same amount of underinsured motorist coverage available to them, this result is unfair and, therefore, our interpretation of § 38a-336 (e) must be contrary to the intent of the legislature. We are not persuaded that our holding in Coon is inconsistent with the legislative intent underlying the enactment of § 38a-336.

The plaintiff asserts that the pertinent “legislative history . . . clearly demonstrates that the uninsured and underinsured motorist statutes were intended to ensure that victims of automobile accidents receive full financial redress for their injuries.” The plaintiffs claim overstates the objective of the legislature in providing for underinsured motorist coverage. Contrary to the assertion of the plaintiff, “the purpose of underinsured motorist coverage is neither to guarantee full compensation for a claimant’s injuries nor to ensure that the claimant will be eligible to receive the maximum payment available under any applicable policy.” Florestal v. Government Employees Ins. Co., supra, 236 Conn. 310. It is, rather, “to give a personal injury claimant access to insurance protection to compensate for the damages that would have been recoverable if the under-insured motorist had maintained an adequate policy of liability insurance. Bodner v. United Services Automobile Assn., 222 Conn. 480, 499, 610 A.2d 1212 (1992); Harvey v. Travelers Indemnity Co., 188 Conn. 245, 249, 449 A.2d 157 (1982).” (Emphasis added.) Smith v. Safeco Ins. Co. of America, 225 Conn. 566, 573, 624 A.2d 892 (1993). Section 38a-336 furthers this legitimate public policy even though certain inequities may arise in some underinsured motorist cases and some accident victims with underinsured motorist coverage will be denied satisfactory compensation for their injuries. See Florestal v. Government Employees Ins. Co., supra, 236 Conn. 310-11. Thus, any anomalous situation created by our construction of § 38a-336 (e) must be remedied by “legislative consideration and action rather than . . . by judicial fiat.” Simonette v. Great American Ins. Co., 165 Conn. 466, 473, 338 A.2d 453 (1973).

Indeed, the legislature has responded to our decision in Coon in a manner that strongly supports the conclusion that Coon was correctly decided. In 1993, the legislature enacted the Automobile Insurance Reform Act; Public Acts 1993, No. 93-297 (P.A. 93-297); which, among other things, eliminated stacking of underinsured motorist coverage for all purposes. See General Statutes § 38a-336 (d). Although P.A. 93-297 is not applicable to this case, it is apparent that the legislature, in considering the very issue that we addressed in Coon, validated, rather than overruled, our construction of § 38a-336 (e). For us to renounce our holding in Coon after the legislature has signalled its approval of the construction of § 38a-336 (e) that we adopted therein would be contrary to the fundamental objective of statutory construction, namely, “to ascertain and give effect to the apparent intent of the legislature. ” (Internal quotation marks omitted.) Fleming v. Garnett, 231 Conn. 77, 92, 646 A.2d 1308 (1994).

In light of the clearly expressed intent of the legislature, “we are constrained to adhere to our holding in [Coon] despite the unfortunate fact that, under [Coon], some accident victims with underinsured motorist coverage will be denied satisfactory compensation for their injuries.” Florestal v. Government Employees Ins. Co., supra, 236 Conn. 310-11. Accordingly, the plaintiffs claim must fail.

II

The plaintiff also claims that § 38a-336 (e), as construed in American Motorists Ins. Co. v. Gould, supra, 213 Conn. 625, and Covenant Ins. Co. v. Coon, supra, 220 Conn. 30, and as applied to the facts of this case, violates the equal protection clauses of the fourteenth amendment to the United States constitution and article first, § 20, of the Connecticut constitution. In Florestal v. Government Employees Ins. Co., supra, 236 Conn. 313-16, we have today considered, and rejected, a constitutional challenge identical in all material respects to the equal protection claim raised by the plaintiff. We reject the plaintiffs claim for the same reasons that we enumerated in Florestal.

The judgment is affirmed.

In this opinion BORDEN, KATZ and LANDAU, Js., concurred.

BERDON, J.,

concurring. I join the opinion of the court subject to my comments in Florestal v. Government Employees Ins. Co., 236 Conn. 299, 316-17, 673 A.2d 474 (1996).

       General Statutes § 38a-336 (e) provides: “For the purposes of this section, an ‘underinsured motor vehicle’ means a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made under subsection (b) of this section.”
      At all times relevant to this appeal, the above subsection was codified as § 38a-336 (d). In 1993, § 38a-336 was amended by No. 93-297 of the 1993 Public Acts, which added a new subsection (d), causing the previous subsection (d) to be renumbered as subsection (e). Because § 38a-336 as amended is also relevant to the outcome of this appeal, and because the content of the new subsection (e) and the old subsection (d) are identical, all references in this opinion are to the current statutory provisions.

        Gould was overruled in part on other grounds by Coon.

       The plaintiffs decedent was also insured under a policy issued by the Nationwide Insurance Company with underinsured motorist limits of $20,000. Nationwide Insurance Company paid the plaintiff a total of $15,730.79, representing the coverage limit less certain applicable credits, and is not a party to this appeal.

         General Accident Insurance Company did not participate in the arbitration but agreed to be bound by the decision of the arbitration panel.

       The arbitration panel initially concluded that underinsured motorist coverage was triggered under each of the policies issued by the defendants. Upon reconsideration of its decision after the release of our decision in Coon, however, the panel reversed itself, concluding that the plaintiff was not entitled to underinsured motorist benefits under any of the policies.

       In the Appellate Court, the plaintiff conceded that his claim was foreclosed under Covenant Ins. Co. v. Coon, supra, 220 Conn. 30, and American Motorists Ins. Co. v. Gould, supra, 213 Conn. 625. The plaintiff argued, however, that those decisions were wrongly decided and, furthermore, that the application of our holdings in those cases to the facts of this case rendered § 38a-336 (e) unconstitutional. The Appellate Court refused to address the first contention because that court is bound by this court’s precedent. The Appellate Court also declined to review the plaintiffs constitutional claim, stating that “[e]ven though the equal protection claims presented here were not raised or considered in Coon and Gould, it is not our function, as an intermediate appellate court, to review whether those decisions render that statute unconstitutional. Whether to overrule a prior Supreme Court decision on grounds not raised in the argument of that case is a matter appropriately reserved for the Supreme Court.” Lash v. Aetna Casualty & Surety Co., 36 Conn. App. 623, 625, 652 A.2d 526 (1995).

       We certified the following questions: (1) “Whether a person killed in a multivictim automobile collision, who recovers only $118,373.50 from the tortfeasor’s liability insurance policy, qualifies for underinsured motorist coverage under either his $500,000 underinsured motorist policy or his $200,000 underinsured motorist policy.” (2) “Whether a person killed in a multivictim automobile collision, who recovers only $118,373.50 from the tortfeasor’s liability insurance policy, should be entitled to recover underinsured motorist coverage based on his aggregated underinsured motorist policies, for which separate premiums were paid, with total available coverage limits of $845,000.” (3) “Whether this court’s decisions in American Motorists Ins. Co. v. Gould, 213 Conn. 625 [234 A.2d 1105] (1990), and/or Covenant Ins. Co. v. Coon, 220 Conn. 30 [594 A.2d 977] (1991), should be abandoned or reconsidered.” (4) “Whether the underinsured motorist statute at issue in this case, General Statutes § 38a-336 (d), is unconstitutional as interpreted in Gould and Coon and applied to the facts of this case.” Lash v. Aetna Casualty & Surety Co., 233 Conn. 910, 911, 659 A.2d 183 (1995).

       In Coon, we held that when more than one underinsured motorist policy is available, the determination of whether a claimant may recover under a particular policy is made by comparing the limits of the tortfeasor’s policy with the limits of each individual underinsured motorist policy against which the claimant seeks to make a claim. Covenant Ins. Co. v. Coon, supra, 220 Conn. 35-37. Thus, for purposes of determining whether a tortfeasor is underinsured within the meaning of § 38a-336 (e), the underinsured motorist limits of the policies available to the claimant may not be aggregated, or “stacked.” Accordingly, the plaintiff, under our holding in Coon, may not recover underinsured motorist benefits under any of the policies issued by the defendants because the amount of liability coverage provided under the tortfeasor’s policy, $500,000, is equal to or greater than the underinsured motorist limits of the defendants’ policies.

       In Gould, we held that in determining whether a vehicle is underinsured within the meaning of § 38a-336 (e), the limits of the tortfeasor’s Lability poLcy must be compared with the Lmits of the claimant’s underinsured motorist policy rather than the payments actually received by the claimant under the liability policy. American Motorists Ins. Co. v. Gould, supra, 213 Conn. 630-34. Under the construction of § 38a-336 that we adopted in Gould, therefore, the tortfeasor was not underinsured, even though the plaintiff recovered substantially less than the Lmits of the tortfeasor’s poLcy, because the applicable underinsured motorist Lmits of each of the poLcies issued by the defendants; see footnote 8; was equal to or less than the LabiLiy Lmits of the tortfeasor’s poLcy.

       The plaintiff could also prevail, at least partially, if we were to overrule either Gould or Coon, but not both. If we overruled only Coon, the aggregated underinsured motorist coverage limits of the applicable policies, $845,000, would exceed the liability policy limit of $500,000, (hereby triggering underinsured motorist coverage. Similarly, if we overruled only Gould, the total payments received by the plaintiff under the tortfeasor’s liability policy, $118,373.50, would be less than the underinsured motorist coverage provided under the policies issued by Aetna Casualty and Surety Company (8500,000) and Allstate Insurance Company ($200,000), thereby triggering underinsured motorist coverage under those two policies only.

       We also concluded in Coon that in determining whether a tortfeasor is underinsured, the per person limit of the tortfeasor’s liability policy, and not the policy’s per accident limit, is to be compared with the limits of the claimant’s underinsured motorist coverage. Covenant Ins. Co. v. Coon, supra, 220 Conn. 33-34.

       Stacking is a judicially adopted doctrine, never expressly mandated by our legislature. See, e.g., Kent v. Middlesex Mutual Assurance Co., 226 Conn. 427, 431-32, 438 n. 14, 627 A.2d 1319 (1993). Thus, although Connecticut has had a long history of stacking; see J. Berk & M. Jainchill, Connecticut Law of Uninsured and Underinsured Motorist Coverage (1993) § 5.1, p. 180; the aggregation of uninsured and underinsured motorist coverage, while not prohibited by the legislature prior to the enactment of P.A. 93-297, has never been explicitly approved by the legislature.

       General Statutes § 38a-336 (d) provides: “Regardless of the number of policies issued, vehicles or premiums shown on a policy, premiums paid, persons covered, vehicles involved in an accident, or claims made, in no event shall the limit of liability for uninsured and underinsured motorist coverage applicable to two or more vehicles covered under the same or separate policies be added together to determine the limit of liability for such coverage available to an injured person or persons for any one accident. If a person insured for uninsured and underinsured motorist coverage is an occupant of a nonowned vehicle covered by a policy also providing uninsured and underinsured motorist coverage, the coverage of the occupied vehicle shall be primary and any coverage for which such person is a named insured shall be secondary. All other applicable policies shall be excess. The total amount of uninsured and underinsured motorist coverage recoverable is limited to the highest amount recoverable under the primary policy, the secondary policy or any one of the excess policies. The amount paid under the excess policies shall be apportioned in accordance with the proportion that the limits of each excess policy bear to the total limits of the excess policies. If any person insured for uninsured and underinsured motorist coverage is an occupant of an owned vehicle, the uninsured and underinsured motorist coverage afforded by the policy covering the vehicle occupied at the time of the accident shall be the only uninsured and underinsured motorist coverage available.”

         Public Act 93-297 took effect on January 1, 1994.

       “The [plaintiff] correctly assertfs] that under our construction of § 38a-336, [he] would have been able to obtain a greater recovery had the tortfeasor been uninsured. [He] further maintain[s] that this result is inconsistent with the legislature’s principal reason for amending our uninsured motorist statutes in 1979; Public Acts 1979, No. 79-235; to include underinsured motorist coverage, namely, ‘to remedy the “anomalous situation” . . . where an injured party could find himself in a better position if the tortfeasor had no liability insurance than if he had only the statutory minimum amount. ’ Nationwide Ins. Co. v. Gode, 187 Conn. 386, 390-91, 446 A.2d 1059 (1982), overruled in part on other grounds, Covenant Ins. Co. v. Coon, 220 Conn. 30, 594 A.2d 977 (1991). As we have indicated, however, we may notpresume that the legislature soughtto address every possible anomalous situation that may arise under the statutory scheme governing uninsured and underinsured motorist coverage. Moreover, we must construe § 38a-336 (e) ‘without reference to whether [we think that provision] would have been or could be improved by the inclusion of other provisions.’ Battersby v. Battersby, 218 Conn. 467, 471, 590 A.2d 427 (1991); see also Simonette v. Great American Ins. Co., [supra, 165 Conn. 466]. Accordingly, our duty is not to second guess the wisdom of a clear expression of legislative will but, rather, to ascertain and give effect to the intent of the legislature. See Gonsalves v. West Haven, 232 Conn. 17, 26, 653 A.2d 156 (1995). In light of the plain language of § 38a-336 (e) and the legislature’s apparent validation of our interpretation of that statutory subsection as reflected in its enactment of [§ 38a-336 (d)], we reject the plaintifffs] argument that Gould must be overruled in order to avoid an anomalous result in this case.” Florestal v. Government Employees Ins. Co., supra, 236 Conn. 308-309 n.5.

       The fourteenth amendment to the United States constitution provides in relevant part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

        Article first, § 20, of the Connecticut constitution, as amended, provides: “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability.”
      Because the plaintiff does not contend that he is entitled to any greater protection under the state constitution than he is under the federal constitution, we treat those provisions as embodying the same level of protection.