Aetna Life and Cas. Co. v. Braccidiferro

• Citation: 34 Conn.App. 833,643 A.2d 1305
• Decision Date: 28 June 1994
• Docket Number: No. 11058,11058
• Court: Appellate Court of Connecticut
• Parties: AETNA LIFE AND CASUALTY COMPANY v. Marie BRACCIDIFERRO.

Page 1305

643 A.2d 1305

34 Conn.App. 833

AETNA LIFE AND CASUALTY COMPANY v. Marie BRACCIDIFERRO.

No. 11058.

Appellate Court of Connecticut.

Argued Nov. 3, 1993.

Decided June 28, 1994.

Michael P. Del Sole, New Haven, with whom, on the brief, was Rene G. Martineau, Oakville, for appellant (plaintiff).

George H. Romania, New Haven, for appellee (defendant).

William Gallagher, Cynthia C. Bott, New Haven, Kurt Koehler, and Thomas J. Airone, Law Students Interns, filed a brief for the Connecticut Trial Lawyers Ass'n as amicus curiae.

Before LANDAU, FREDERICK A. FREEDMAN and SCHALLER, JJ.

LANDAU, Judge.

This is an appeal by the plaintiff, Aetna Life and Casualty Company (Aetna), from the denial by the trial court of an application to vacate, correct or modify the award of the arbitration panel to the defendant, Marie Braccidiferro. Aetna claims that the trial court improperly denied the application because the defendant's claim for underinsured motorist benefits, made more than two years after the date of the accident that forms the basis of that claim, was time barred. After this court heard arguments on appeal, we ordered supplemental briefs to address the effect, if any, of Public Acts 1993, No. 93-77 (P.A. 93-77), approved on May 20, 1993, to take effect upon passage.

The following facts are relevant to this appeal. On March 18, 1986, Aetna issued an insurance policy to Braccidiferro's husband that provided, inter alia, coverage for injuries and damages sustained as a result of the negligence of an owner or operator of an uninsured motor vehicle. On April 1, 1986, Braccidiferro sustained personal injuries when the vehicle she was operating was struck by a vehicle operated by Michael Murgo. Murgo's liability coverage provided by Nationwide Insurance Company (Nationwide) totaled $50,000. On April 25, 1989, Nationwide agreed to pay Braccidiferro the policy's full liability benefits, thereby exhausting the liability coverage on the underinsured vehicle. On May 5, 1989, Braccidiferro submitted a written claim for underinsured motorist benefits to Aetna pursuant to the policy. ¹ Aetna disclaimed liability because the claim had not been presented on or before April 1, 1988.

Pursuant to the policy, the dispute was submitted to arbitration and the arbitrators, in a split decision, found liability under the policy, rejecting the claim that the underinsured motorist claim was barred by a two year limitation under the policy. The majority found the claim to be timely ² and awarded the defendant damages. The trial court granted the defendant's motion to confirm the award and denied Aetna's application to vacate, correct or modify the award. This appeal followed. ³ At the original appellate hearing, Aetna claimed that this appeal was controlled by the McGlinchey decision as that case involved the identical policy language and the same arguments. McGlinchey v. Aetna Casualty & Surety Co., 224 Conn. 133, 617 A.2d 445 (1992). Braccidiferro agreed that the McGlinchey case "dealt with, and decided specific issues presented before this court," but claimed that "the policy provision in [her] case appear[s] to be different than those before the court in ... McGlinchey," and urged this court to rule independently on the policy provision's ambiguity.

At oral argument, this court, concerned with the effect, if any, of P.A. 93-77, effective May 20, 1993, on the sole issue before it, ordered supplemental briefs filed. ⁴

This appeal is controlled by McGlinchey. We disagree with the defendant's claim that the policy language in this appeal is different from the language found in the McGlinchey policy. The trial court's analysis, employed in this case, as to statutory construction and ambiguity was rejected in McGlinchey, and, therefore, its decision must be reversed unless P.A. 93-77 requires a different result.

I APPLICABILITY OF P.A. 93-77 TO THIS APPEAL

Aetna asserts (1) that P.A. 93-77 is inapplicable to the facts presented in this appeal, (2) that, if the act does apply to the facts in this appeal, the provisions of the act modify the previous two year limitation contained in the insurance policy to a three year limitation requirement and Braccidiferro's claim is still time barred, and (3) that, if the act applies to the facts presented in this appeal and invalidates the former valid policy limitation rather than modifies it, the act is unconstitutional as applied because (a) it violates article first, § 1, of the state constitution, (b) it violates the contract clause of the United States constitution and (c), applied retroactively, it deprives Aetna of due process of law, in violation of article one, § 10, of the United States constitution, the fourteenth amendment to the United States constitution and article first, § 10, of the state constitution. The defendant disagrees.

On or about May 20, 1993, P.A. 93-77 was signed into law. General Statutes § 38a-290, which dealt with an insurer's ability to limit the time within which an insured can make a claim against a policy of insurance, was amended by the new statute with the additional language: "This section shall not apply to suits and arbitration claims under the uninsured or underinsured motorist provisions of a motor vehicle insurance policy." Public Acts 1993, No. 93-77. As to § 38a-336 of the General Statutes, the following provisions were added: "(e) No insurance company doing business in this state may limit the time within which any suit may be brought against it or any demand for arbitration on a claim be made on the uninsured or underinsured motorist provisions of a motor vehicle policy to a period of less than three years from the date of accident, provided, in the case of underinsured motorist claim the insured may toll any applicable limitation period (1) by notifying such insurer prior to the expiration of the applicable limitation period, in writing, of any claim which the insured may have for underinsured motorist benefits and (2) by commencing suit or demanding arbitration under the terms of the policy not more than one hundred eighty days from the date of exhaustion of the limits of liability under all automobile bodily injury liability bonds or automobile insurance policies applicable at the time of the accident by settlements or final judgments after any appeals.

"Sec. 3. (New) No uninsured or underinsured motorist claim or action pending on December 8, 1992, or brought after said date and prior to the effective date of this act, in which a settlement has not been reached or a final judgment has not been rendered prior to the effective date of this act, shall fail by reason of any contractual limitation in a motor vehicle insurance policy which limits the time within which such claim shall be submitted to arbitration or such action shall be commenced to a period of time less than that allowed under section 38a-336 of the general statutes, as amended by ... this act.

"Sec. 4. This act shall take effect from its passage." Public Acts 1993, No. 93-77.

In this case, the judgment appealed from was rendered on January 4, 1992. An appeal was taken and pending on December 8, 1992. If the decision is affirmed, the date of judgment is the date the trial court rendered judgment; if the judgment is reversed, the date of judgment is the date of the Appellate Court's decision. Connecticut Bank & Trust Co. v. Winters, 225 Conn. 146, 160, 622 A.2d 536 (1993). Aetna claims that since a final judgment had been rendered prior to the effective date of P.A. 93-77, this case remains controlled by the Supreme Court decision in McGlinchey v. Aetna Casualty & Surety Co., supra, 224 Conn. at 133, 617 A.2d 445. Braccidiferro claims, first, that the act, by its very language, was intended to apply to all actions pending on or brought after December 8, 1992, that had not been settled or had not reached a final judgment. Thus, the case having been appealed, she asserts, there is no final judgment. She also argues that although the act affects substantive rights, it should be applied retroactively because the legislature has expressed such a clear intent. See Darak v. Darak, 210 Conn. 462, 468, 556 A.2d 145 (1989); State v. Lizotte, 200 Conn. 734, 741, 517 A.2d 610 (1986).

The first issue that we must examine is the meaning of the term "final judgment" as used by the legislature in P.A. 93-77. Aetna asserts that this phrase is unambiguous, and therefore urges us to adopt a definition that the appellate courts of this state have pronounced in cases involving Practice Book § 4000. See Practice Book § 4000; State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983). The defendant, however, prompts this court to find that the meaning of this phrase is ambiguous and unclear, requiring us to consider the legislative intent behind the act. We agree with the defendant.

" 'Although it is axiomatic that, where the statutory language is clear and unambiguous, construction of the statute by reference to its history and purpose is unnecessary; Manchester v. Manchester Police Union, 3 Conn.App. 1, 6, 484 A.2d 455 (1984); that axiom only applies in full force "[w]here ... the language of a statute is ... absolutely clear" on its face and where no ambiguity is disclosed by reference to its background. (Emphasis in original.) Anderson v. Ludgin, 175 Conn. 545, 552-54, 400 A.2d 712 (1978).' " Dugas v. Lumbermens Mutual Casualty Co., 22 Conn.App. 27, 33, 576 A.2d 165 (1990). " 'A word or statute is ambiguous when capable of being interpreted by reasonably well-informed persons in either of two or more senses.' " Federal Aviation Administration v. Administrator, 196 Conn. 546, 554, 494 A.2d 564 (1985) (Healy, J., dissenting), citing Vernon v. Waukesha County, 99 Wis.2d 472, 477, 299 N.W.2d 593 (1980), aff'd, 102 Wis.2d 686, 307 N.W.2d 227 (1981); 73 Am.Jur.2d, Statutes § 258 (1974). The phrase "final judgment" is susceptible to two different meanings. The rules of practice describe "final...