Shelby Mut. Ins. Co. v. Bishop, Kirk and Saunders, Inc.

• Decision Date: 05 January 1988
• Docket Number: No. 4540,4540
• Citation: 535 A.2d 387,13 Conn.App. 189
• Court: Connecticut Court of Appeals
• Parties: SHELBY MUTUAL INSURANCE COMPANY v. BISHOP, KIRK AND SAUNDERS, INC.

Page 387

535 A.2d 387

13 Conn.App. 189

SHELBY MUTUAL INSURANCE COMPANY v.BISHOP, KIRK AND SAUNDERS, INC.

No. 4540.

Appellate Court of Connecticut.

Argued Oct. 15, 1987.

Decided Jan. 5, 1988.

Jeffrey D. Lynch, with whom, on the brief, was Thomas M. Murtha, Bridgeport, for appellant(defendant).

Stephen R. Bellis, Bridgeport, for appellee(plaintiff).

Before DUPONT, C.J., and SPALLONE and STOUGHTON, JJ.

STOUGHTON, Judge.

This is an appeal from a judgment for the plaintiff rendered by the court upon the decision of an arbitrator.The sole issue presented is whether the right of the defendant to trial by jury under our state constitution was violated.We find no error.

The plaintiff brought this action for breach of contract, alleging that the defendant, an insurance agency, had failed to comply with insurance underwriting rules and regulations.The defendant filed its answer to the complaint, and filed a claim for the jury trial list.After giving notice to the parties, the court referred the case to an arbitrator appointed pursuant to General Statutes § 52-549w, ¹ and the matter was assigned for April 26, 1985.Neither the defendant nor its counsel appeared for the arbitration hearing.The arbitrator proceeded with the hearing and made a decision, pursuant to General Statutes § 52-549y, ² finding for the plaintiff.The defendant filed a motion for trial de novo, an objection to which was sustained.A motion to open the judgment was also denied.

The defendant claims that General Statutes § 52-549u³ is unconstitutional because it effectively abolished the defendant's right to trial by jury.We disagree.

Section 52-549u permits the judges of the Superior Court to make rules providing a procedure under which the court may refer to an arbitrator certain civil actions in which a claim for a trial by jury and a claim for the trial list have been filed.These rules are found in Practice Book§ 546L et seq.The plaintiff first argues that this claim should not be considered at all because it was not raised until the defendant, on appeal, filed its preliminary statement of issues.A challenge to the jurisdiction of a court to render judgment may, however, be raised at any time.Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 499, 508 A.2d 415(1986).

Article IV of the amendments to the constitution of Connecticut provides, inter alia, that the right of trial by jury "shall remain inviolate."It is clear that the right to a jury trial may not be abolished as to causes triable to the jury prior to the constitution of 1818, and extant at the time of its adoption.Gentile v. Altermatt, 169 Conn. 267, 298, 363 A.2d 1(1975), appeal dismissed, 423 U.S. 1041, 96 S.Ct. 763, 46 L.Ed.2d 631(1976).This is such a case.Nevertheless, such a right may be subjected to reasonable conditions and regulations.Kredi v. Benson, 1 Conn.App. 511, 515, 473 A.2d 333, cert. denied, 193 Conn. 803, 474 A.2d 1260(1984).The provision by the legislature for an alternative means of dispute resolution through the use of arbitrators to hear cases claimed for jury trial was but part of an effort to alleviate court congestion.SeeSeal Audio, Inc. v. Bozak, Inc., supra.The right to a trial by jury in these cases is preserved inviolate by General Statutes § 52-549z⁴andPractice Book§ 546S.⁵Each of these sections provides for a claim for a trial de novo within twenty days of the filing of the arbitrator's decision.Once a claim for trial de novo is filed in accordance with the rules, a decision of an arbitrator becomes null and void.Under the provisions of § 52-549z(c)and§ 546S(c), however, only a party who has appeared at the hearing may claim a trial de novo.This is a reasonable requirement and does not operate to abolish the right to a trial by jury.It is not unreasonable to require that a party attend a hearing when a case has been assigned by the court.The defendant did not attend the hearing before the arbitrator, and the objection to its motion for trial de novo was properly sustained.

It is well settled that a party who challenges a statute on constitutional grounds has no easy burden for every intendment will be made in favor of constitutionality, and invalidity must be established beyond a reasonable doubt.University of Connecticut Chapter, AAUP v. Governor, 200 Conn. 386, 390, 512 A.2d 152(1986), citingState v. Darden, 171 Conn. 677, 679, 372 A.2d 99(1976).The defendant has failed to meet this heavy burden.The statute and the rule are reasonable in their requirements and, therefore, not unconstitutional as applied to the defendant here.

There is no error.

In this opinion the other Judges concurred.

1"[General Statutes] Sec. 52-549w.APPOINTMENT OF ARBITRATORS.COMPENSATION.POWERS.(a) Upon publication of a notice in the Connecticut Law Journal, any commissioner of the superior court admitted to practice in this state for at least five years, who is willing and able to act as an arbitrator, may submit his name to the office of chief court administrator for approval to be placed on a list of available arbitrators for one or more judicial districts.The criteria for selection and approval of arbitrators shall be promulgated by the judges of the superior court.Upon selection and approval by the chief court administrator, for such term as he may fix, the arbitrators shall be sworn or affirmed to try justly and equitably all matters at issue submitted to them.The chief court administrator, in his discretion, may at any time revoke any such approval.

"(b) Each arbitrator shall receive one hundred dollars for each day he is assigned to a courthouse facility to conduct proceedings as an arbitrator and an additional twenty-five dollars for each decision filed with the court.In difficult or extraordinary cases, the chief court administrator may, in his discretion, make a further allowance not to exceed two hundred dollars for services rendered attendant to but not part of the hearing.

"(c) Such arbitrators shall have the power to: (1) Issue subpoenas for the attendance of witnesses and for the production of books, papers and other evidence, such subpoenas to be served in the manner provided by law for service of subpoenas in a civil action and to be returnable to the arbitrators; (2) administer oaths or affirmations; and (3) determine the admissibility of evidence and the form in which it is to be offered."

2"[General Statutes] Sec. 52-549y.FAILURE TO APPEAR.JUDGMENT.MOTION TO OPEN OR SET ASIDE JUDGMENT.DISMISSAL OF ACTION.PAYMENT OF ARBITRATION FEE.E. (a) Where a party fails to appear at the hearing, the arbitrator shall nonetheless proceed with the hearing and...