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Bouchard v. Wheeler

CAITLYN BOUCHARD ET AL. v. CHEYANNE E.

WHEELER ET AL.

(AC 45627)

Elgo, Moll and Suarez, Js.

Syllabus

Pursuant to statute (§ 38a-336 (e)), an underinsured motor vehicle is a motor

vehicle with respect to which the sum of the limits of liability under

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 the claim is made.

The plaintiffs, who sustained injuries in a motor vehicle accident, sought to

recover underinsured motorist benefits under an automobile insurance

policy issued to them by the defendant S Co. At the time of the accident,

the plaintiffs’ policy and the insurance policy of the defendant tortfeasors

each provided liability coverage of up to $100,000 per person and

$300,000 per accident. The tortfeasors’ insurer thereafter made payments

to the plaintiffs and to others injured in the accident that exhausted the

$300,000 per accident limit of the tortfeasors’ policy. After the plaintiffs

settled their claims with the tortfeasors and withdrew their action as

against them, S Co. moved for summary judgment, claiming that the

plaintiffs were not entitled to underinsured motorist benefits because,

under our Supreme Court’s precedent, their underinsured motorist coverage did not exceed the liability limits of the tortfeasors’ policy. The

plaintiffs contended that the tortfeasors’ vehicle was an underinsured

motor vehicle and that they were entitled to underinsured motorist

benefits because a legislative amendment (P.A. 14-20, § 1) to the underinsured motorist statute (§ 38a-336) had overruled that precedent. The

trial court denied S Co.’s motion for summary judgment, concluding that

the plaintiffs were entitled to underinsured motorist benefits because

the total recovery they obtained from the tortfeasors was less than the

$300,000 per accident limit in the tortfeasors’ policy. The court reasoned

that P.A. 14-20 required that the proper comparison of the applicable

limits of the policies of the tortfeasor and the claimant must be between

the amount of liability insurance actually available to a plaintiff under

a tortfeasor’s policy, after other claimants under that policy are paid,

with the amount of a plaintiff’s underinsured motorist coverage. The

plaintiffs and S Co. then entered into a stipulation that reserved S Co.’s

right to appeal the propriety of the court’s denial of its motion for

summary judgment and in which they agreed, inter alia, that the plaintiffs’

policy and the tortfeasors’ policy contained identical coverage limits

and that the $300,000 per accident limit of liability coverage in the
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Bouchard v. Wheeler

tortfeasors’ policy had been exhausted. The court then rendered judgment for the plaintiffs in accordance with the parties’ stipulation, from

which S Co. appealed to this court. Held that the trial court improperly

denied S Co.’s motion for summary judgment, as the tortfeasors’ vehicle

plainly was not an underinsured motor vehicle within the meaning of

that term in § 38a-336 (e) because their underinsured motorist coverage

was not less than, but identical to, the plaintiffs’ liability coverage:

although the language of § 38a-336, as amended by P.A. 14-20, was

ambiguous as applied to the facts of this case, this court determined

that the legislature, in P.A. 14-20, did not intend to alter the definition

of an underinsured motor vehicle in § 38a-336 (e) or to overrule the

precedent of our Supreme Court concerning that definition but, rather,

intended to clarify that an insurer may offset from its insured’s underinsured motorist coverage, pursuant to § 38a-336 and the applicable regulation (§ 38a-336-4), only that amount their insured actually received from

the tortfeasor’s coverage for bodily injury; moreover, this court was

hard-pressed to conclude that the legislature intended to amend the

definition of an underinsured motor vehicle in § 38a-336 (e) and overrule

sub silentio a substantial body of our Supreme Court’s precedent pertaining to that definition, as this court was required to presume that

the legislature was aware that the court repeatedly has held that the

application of § 38a-336 involves separate inquiries involving, first,

whether the tortfeasor’s vehicle is underinsured pursuant to § 38a-336

(e), which requires a comparison of the coverage limits contained in

the respective insurance policies of the tortfeasor and the claimant, and,

if so, the calculation of the amount, if any, to be paid to the claimant;

furthermore, the legislative history of P.A. 14-20 indicated that it was

enacted to preclude the practice condoned by this court in Allstate Ins.

Co. v. Lenda (34 Conn. App. 444) that an insurance carrier could offset

underinsured motorist benefits owed to its insured by all amounts paid

by or on behalf of the tortfeasor to the insured and others for bodily injury

and property damage; additionally, although the plaintiffs contended

that § 38a-336 is a remedial statute that must be construed liberally to

protect people injured by uninsured motorists, our Supreme Court has

expressly declined to apply that maxim to decide whether a vehicle met

the statutory definition of an underinsured motor vehicle.

Argued October 3, 2023—officially released April 9, 2024

Procedural History

Action to recover damages for, inter alia, the named

defendant’s alleged negligence, and for other relief,

brought to the Superior Court in the judicial district of

New Britain, where Safeco Insurance Company was
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Bouchard v. Wheeler

cited in as a defendant; thereafter, the action was withdrawn as against the named defendant et al.; subsequently, the court, Hon. Joseph M. Shortall, judge trial

referee, denied the motion for summary judgment filed

by the defendant Safeco Insurance Company; thereafter, the court, Morgan, J., rendered judgment for the

plaintiffs in accordance with the parties’ stipulation,

from which the defendant Safeco Insurance Company

appealed to this court. Reversed; judgment directed.

Philip T. Newbury, Jr., for the appellant (defendant

Safeco Insurance Company).

James J. Walker, for the appellees (plaintiffs).

Opinion

ELGO, J. This case concerns the proper application

of General Statutes § 38a-336, commonly known as the

underinsured motorist statute. See Tannone v. Amica

Mutual Ins. Co., 329 Conn. 665, 676, 189 A.3d 99 (2018).

The defendant Safeco Insurance Company1 appeals

from the judgment of the trial court rendered in accordance with the stipulation that it entered into with the

plaintiffs Caitlyn Bouchard, Kayla Bouchard and Madalyn Bouchard.2 On appeal, the defendant claims that

the court improperly concluded that the automobile in

question constituted an underinsured motor vehicle, as

that term is used in § 38a-336. We agree and, accordingly, reverse the judgment of the trial court.

1 Although Cheyanne E. Wheeler and Russell Wheeler also were named

as defendants, the plaintiffs withdrew their complaint against them approximately seven months after this action commenced. We therefore refer to

Safeco Insurance Company as the defendant in this opinion. 2 Caitlyn Bouchard appeared before the court in both her individual capacity and as parent and next friend of Kayla Bouchard and Madalyn Bouchard.

Although Caitlyn Bouchard also appeared on behalf of the plaintiff Tristan

Bouchard, as parent and next friend, Tristan Bouchard was not a party to

the stipulation and is not participating in this appeal.

For clarity, we refer to Caitlyn Bouchard, Kayla Bouchard and Madalyn

Bouchard individually by first name and collectively as the plaintiffs.
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Bouchard v. Wheeler

The relevant facts are not in dispute. On February

16, 2018, Caitlyn was operating a vehicle insured by the

defendant on East Main Street in Thomaston. Among

her passengers were her daughters, Kayla and Madalyn.

At that time, Cheyanne E. Wheeler was operating a

vehicle owned by Russell Wheeler (Wheeler vehicle). As

she approached an intersection, Cheyanne E. Wheeler

negligently turned the Wheeler vehicle into Caitlyn’s

lane of traffic, causing a collision that injured the plaintiffs and other individuals.

The plaintiffs thereafter commenced the present

action, alleging negligence and recklessness on the part

of Cheyanne E. Wheeler, as well as family car doctrine

liability; see Matthiessen v. Vanech, 266 Conn. 822, 836

n.14, 836 A.2d 394 (2003); on the part of Russell Wheeler

pursuant to General Statutes § 52-182. In addition, the

plaintiffs alleged that, at all relevant times, the Wheeler

vehicle was an underinsured motor vehicle and that

they were entitled to underinsured motorist benefits

from the defendant, their insurer. After the plaintiffs

settled their claims with the tortfeasors’ insurer and

withdrew their action against Cheyanne E. Wheeler and

Russell Wheeler, the defendant moved for summary

judgment on the ground that ‘‘the plaintiffs are not

entitled to underinsured benefits [because their] underinsured coverage is equal to the tortfeasor’s liability

coverage.’’

In its January 5, 2021 memorandum of decision, the

court, Hon. Joseph M. Shortall, judge trial referee,

acknowledged the precedent of our Supreme Court

holding that a motor vehicle is not underinsured where

the liability limits in the tortfeasor’s policy are equal to

or greater than the underinsured benefits in the claimant’s policy. See Doyle v. Metropolitan Property &

Casualty Ins. Co., 252 Conn. 79, 87–91, 743 A.2d 156

(1999); Florestal v. Government Employees Ins. Co.,

236 Conn. 299, 301, 673 A.2d 474 (1996); American
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Bouchard v. Wheeler

Motorists Ins. Co. v. Gould, 213 Conn. 625, 632–33, 569

A.2d 1105 (1990), overruled in part on other grounds

by Covenant Ins. Co. v. Coon, 220 Conn. 30, 594 A.2d

977 (1991). The court nevertheless concluded that a

2014 amendment to § 38a-336 (b) legislatively overruled

that Supreme Court precedent. Whereas the pertinent

inquiry under that precedent entailed comparison of

the applicable limits of the respective insurance policies

of the tortfeasor and the claimant, the trial court held

that, following passage of No. 14-20, § 1, of the 2014

Public Acts (P.A. 14-20), ‘‘the comparison must be

between the amount of liability insurance actually

available to the plaintiff under the tortfeasor’s liability

insurance policy, after other claimants under that policy

are paid, with the amount of the plaintiff’s underinsured

motorist coverage.’’ (Emphasis in original.) Because the

total recovery obtained by the plaintiffs was less than

the $300,000 per accident limit for coverage under the

automobile policy issued by the defendant (Bouchard

policy), the court concluded that they were entitled

to additional underinsured motorist benefits. For that

reason, the court denied the defendant’s motion for

summary judgment.

The parties thereafter entered into a stipulated judgment that reserved the defendant’s right to appeal the

propriety of the court’s denial of its motion for summary

judgment. That stipulation set forth the following additional facts. At the time of the accident, the Wheeler

vehicle was insured for automobile liability by State

Farm Mutual Automobile Insurance Company (Wheeler

policy). The Wheeler policy provided coverage of up

to $100,000 per person and $300,000 per accident. State

Farm Mutual Automobile Insurance Company subsequently made payments to the plaintiffs and other individuals injured in the accident, thereby exhausting the

$300,000 per accident limit of the Wheeler policy.3

3 The stipulated judgment indicates that State Farm Mutual Automobile

Insurance Company paid ‘‘$80,500 to settle the claim by Caitlyn,’’ ‘‘$60,000
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Bouchard v. Wheeler

At all relevant times, the plaintiffs were insured under

the Bouchard policy. As the parties noted in their stipulation, ‘‘the uninsured and underinsured motorist limits

of the [Bouchard] policy are $100,000 per person and

$300,000 per accident without conversion coverage

. . . .’’4 (Emphasis added.) It therefore is undisputed

that the Wheeler policy and the Bouchard policy contain

identical coverage limits.

By order dated June 27, 2022, the court rendered

judgment in accordance with the stipulation of the parties. The defendant then commenced this timely appeal.

The issue presented in this appeal is whether the

court correctly determined that the Wheeler vehicle

constituted an underinsured motor vehicle, as that term

is used in § 38a-336. The proper construction of § 38a336 presents a question of law, over which our review is

to settle the claim by Kayla,’’ ‘‘$50,000 to settle the claim by Madalyn,’’ and

‘‘$109,500 to settle claims by additional injured persons who are not parties

to this agreement . . . .’’ 4 In their operative complaint, the plaintiffs alleged that the Bouchard

policy ‘‘provided underinsured motorist conversion coverage.’’ They nevertheless agreed, in the stipulated judgment entered into with the defendant

and approved by the court, that the Bouchard policy did not provide conversion coverage. The record before us contains a copy of the Bouchard policy,

which was appended as an exhibit to the defendant’s memorandum of law

in support of its motion for summary judgment. That exhibit confirms that

the Bouchard policy did not provide underinsured motorist conversion coverage.

‘‘[C]onversion coverage is an option [that] is available for an additional

premium to consumers who wish to purchase it in lieu of standard underinsured motorist coverage under § 38a-336 [and] provides enhanced protection

to victims of underinsured motorists . . . . In contrast to traditional underinsured motorist coverage, underinsured motorist conversion coverage is

not reduced by the amount of any payment received by or on behalf of the

tortfeasor or a third party. . . . As our Supreme Court succinctly explained,

conversion coverage . . . means that any [uninsured] motorist benefits [a

plaintiff] is entitled to from the defendant will not be reduced by the amount

recovered from the legally responsible parties.’’ (Citations omitted; emphasis

omitted; internal quotation marks omitted.) Russbach v. Yanez-Ventura,

213 Conn. App. 77, 103–104, 277 A.3d 874, cert. denied, 345 Conn. 902, 282

A.3d 465 (2022).
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Bouchard v. Wheeler

plenary. See Doyle v. Metropolitan Property & Casualty

Ins. Co., supra, 252 Conn. 84.

‘‘When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent

of the legislature. . . . In other words, we seek to

determine, in a reasoned manner, the meaning of the

statutory language as applied to the facts of [the] case,

including the question of whether the language actually

does apply.’’ (Internal quotation marks omitted.) Seramonte Associates, LLC v. Hamden, 345 Conn. 76, 83,

282 A.3d 1253 (2022). Pursuant to General Statutes § 1-

2z, ‘‘[t]he meaning of a statute shall, in the first instance,

be ascertained from the text of the statute itself and

its relationship to other statutes. If, after examining

such text and considering such relationship, the meaning of such text is plain and unambiguous and does

not yield absurd or unworkable results, extratextual

evidence of the meaning of the statute shall not be

considered.’’

I

In ascertaining the proper meaning of § 38a-336, we

do not write on a blank slate, but rather are guided by

our Supreme Court’s prior decisions construing that

statute. See Connecticut Ins. Guaranty Assn. v. Drown,

314 Conn. 161, 173, 101 A.3d 200 (2014); New England

Road, Inc. v. Planning & Zoning Commission, 308

Conn. 180, 186, 61 A.3d 505 (2013). In American Motorists Ins. Co. v. Gould, supra, 213 Conn. 625, the Supreme

Court addressed the question of whether a tortfeasor’s

vehicle constituted an underinsured motor vehicle, as

that term was used in General Statutes (Rev. to 1983)

§ 38-175c, the precursor to § 38a-336. The court first

noted that the statute contained an explicit definition

of the term ‘‘underinsured motor vehicle’’; id., 629; and

explained that § 38-175c ‘‘requires that the insured’s

uninsured motorist coverage limits be greater than
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Bouchard v. Wheeler

the total liability limits for a [tortfeasor’s] vehicle before

it may be deemed underinsured.’’ (Emphasis in original.) Id., 631. The court then continued: ‘‘[T]he 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.’’ (Internal quotation

marks omitted.) Id., 632.

Six years later, the Supreme Court was asked to overrule its decision in Gould. In Florestal v. Government

Employees Ins. Co., supra, 236 Conn. 301, the court

declined to do so and expressly reaffirmed its holding

in Gould. The plaintiffs in Florestal argued that ‘‘a strict

construction of [the definition of ‘underinsured motor

vehicle’ set forth in] § 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.’ ’’ Id., 305. The court acknowledged that

‘‘broadly stated . . . 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.’’ (Internal quotation marks omitted.) Id. The court continued: ‘‘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
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Bouchard v. Wheeler

for injuries caused by an underinsured motorist. . . .

[T]he legislative objective [in enacting § 38a-336] 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.’’ (Emphasis

in original; internal quotation marks omitted.) Id., 306.

The Supreme Court also emphasized that ‘‘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 . . . .’’ (Internal quotation marks omitted.) Id., 310.

Notably, the tortfeasor’s automobile liability policy in

Florestal—like the Wheeler policy here—was exhausted

by payment to multiple claimants. Id., 301. For purposes

of determining whether the tortfeasor’s vehicle was an

underinsured motor vehicle under § 38a-336, our

Supreme Court held that this was a distinction without

a difference, stating: ‘‘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.’’

(Internal quotation marks omitted.) Id., 306.

The court further recognized that, ‘‘several years after

[its] 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 . . . . This option, which is available for an
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Bouchard v. Wheeler

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. . . . By retaining the standard

option under § 38a-336 and providing for another, different kind of underinsured motorist coverage . . . 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.’’ (Citations

omitted; emphasis in original; footnotes omitted; internal quotation marks omitted.) Id., 306–308.

In Doyle v. Metropolitan Property & Casualty Ins.

Co., supra, 252 Conn. 84, the Supreme Court again

adhered to its earlier precedent, and Florestal in particular, stating that, ‘‘[i]n all of these cases, we reasoned

that the determination of whether there was underinsured motorist coverage available to the plaintiff was

to be determined by comparing the amount of liability

insurance potentially available to the plaintiff from the

tortfeasor with the amount of underinsured motorist

coverage potentially available to the plaintiff under his

or her underinsured motorist policy. These potential

availabilities were calculated, moreover, by comparing

the respective stated policy limits—liability and underinsured motorist. That comparison is mandated by the

specific language of § 38a-336 (e) . . . . Furthermore,

this simple comparison—of potentially available liability insurance with potentially available underinsured

motorist coverage—was to be done, we held, irrespective of whether the liability coverage had been fully or
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Bouchard v. Wheeler

partially exhausted by other claimants . . . .’’ Id., 87–

88.

The court also reiterated the proper analytical framework that governs claims involving § 38a-336, stating:

‘‘Application of § 38a-336 involves two separate inquiries. First, it must be determined whether the tortfeasor’s

vehicle is an ‘underinsured vehicle’ within the meaning

of the statute. Second, after this determination is made

and underinsured motorist coverage is found to be

applicable, the finder of fact calculates the amount of

the award to be paid the victim.’’ (Internal quotation

marks omitted.) Id., 84. As an intermediate appellate

tribunal, this court is bound by that precedent. See

Hartford Steam Boiler Inspection & Ins. Co. v. Underwriters at Lloyd’s & Cos. Collective, 121 Conn. App.

31, 48–49, 994 A.2d 262, cert. denied, 297 Conn. 918,

996 A.2d 277 (2010).

II

With that context in mind, we turn to the statutory

language at issue. Section 38a-336 requires automobile

insurance policies in this state to include underinsured

motorist coverage, which pertains to bodily injuries

caused by owners and operators of underinsured motor

vehicles. Importantly, the statute contains a detailed

definition of that term. Section 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.’’5

5 The Bouchard policy contains a definition of an ‘‘underinsured motor

vehicle’’ that largely mirrors the statutory definition provided in § 38a-336

(e), stating: ‘‘ ‘Underinsured motor vehicle’ means a land motor vehicle or

trailer of any type for which the sum of the limits of liability under all bodily

injury bonds or policies applicable at the time of the accident is less than

the limit of liability for this coverage.’’
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Bouchard v. Wheeler

On appeal, the defendant claims that the plain language of § 38a-336 (e) indicates that an automobile qualifies as an ‘‘underinsured motor vehicle’’ only if the

claimant’s uninsured motorist coverage exceeds the liability limits of the tortfeasor’s policy, as our Supreme

Court repeatedly has held. See Doyle v. Metropolitan

Property & Casualty Ins. Co., supra, 252 Conn. 87–88;

Florestal v. Government Employees Ins. Co., supra, 236

Conn. 301; American Motorists Ins. Co. v. Gould, supra,

213 Conn. 632.

The plaintiffs, by contrast, submit that the enactment

of P.A. 14-20 served to amend not only § 38a-336 (b),

but also altered the definition of ‘‘underinsured motor

vehicle’’ contained in § 38a-336 (e). As amended by P.A.

14-20, § 38a-336 (b)—which pertains to underinsured

motorist coverage limits—provides in relevant part: ‘‘In

no event shall there be any reduction of uninsured or

underinsured motorist coverage limits or benefits payable . . . for amounts paid by or on behalf of any tortfeasor for bodily injury to anyone other than individuals

insured under the policy against which the claim is

made, or [for] amounts paid by or on behalf of any

tortfeasor for property damage. . . .’’ In this regard, the

plaintiffs emphasize that the definition of ‘‘underinsured

motor vehicle’’ set forth in § 38a-336 (e) explicitly incorporates § 38a-336 (b) by reference.6 They thus argue

that, for purposes of the comparison mandated by § 38a336 (e), the applicable limits of liability under an underinsured motorist policy that was in effect at the time

of the accident ‘‘means the amount of liability coverage

actually, not just potentially, available’’ to individuals

6 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.’’

(Emphasis added.)
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Bouchard v. Wheeler

insured under that policy pursuant to § 38a-336 (b).7

(Emphasis in original.)

Under our rules of statutory construction, ambiguity

arises whenever statutory language is subject to more

than one plausible interpretation. See, e.g., Redding v.

Georgetown Land Development Co., LLC, 337 Conn.

75, 84 n.9, 251 A.3d 980 (2020) (‘‘[o]ur case law is clear

that ambiguity exists only if the statutory language at

issue is susceptible to more than one plausible interpretation’’ (internal quotation marks omitted)); State v.

Pond, 315 Conn. 451, 468, 108 A.3d 1083 (2015)

(‘‘[b]ecause the statutory language is subject to multiple, plausible interpretations, and it does not expressly

address or resolve the certified question, [the language]

is facially ambiguous’’); Commissioner of Correction

v. Freedom of Information Commission, 307 Conn. 53,

68, 52 A.3d 636 (2012) (‘‘[b]ecause we believe that both

of these interpretations are plausible, we conclude that

the language [in question] is ambiguous’’). We conclude

that the statutory language in question is subject to

more than one plausible interpretation. For that reason,

§ 38a-336 is ambiguous as applied to the facts of this

case.8 Accordingly, resort to extratextual materials is

7 That construction was adopted by the trial court in the present case. In

its memorandum of decision, the court stated in relevant part: ‘‘[Section]

38a-336 . . . defines an ‘underinsured motor vehicle’ as one with respect

to which the limits of liability coverage ‘applicable at the time of the accident’

is less than the applicable limits of the underinsured motorist coverage of

the policy under which claim is made ‘under subsection (b) of this section.’

Interpreting subsection (e) so that it is consistent with the statute as a

whole, including the amended subsection (b), as the court must . . . the

limits of liability coverage ‘applicable at the time of the accident’ must mean

the amount of liability coverage actually not just potentially available to

the plaintiff.’’ (Citation omitted; emphasis in original.) 8 Multiple judges of the Superior Court have determined that § 38a-336 is

ambiguous in similar factual scenarios, necessitating consideration of the

legislative history of P.A. 14-20. See, e.g., Rasimas v. Kemper Independence

Ins. Co., Superior Court, judicial district of Stamford-Norwalk, Complex

Litigation Docket, Docket No. CV-20-6053945-S (December 16, 2021) (Ozalis,

J.) (reviewing P.A. 14-20 and its legislative history to ascertain ‘‘what portion

of the tortfeasor’s liability limits are ‘applicable’ to the plaintiff’s underin-
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Bouchard v. Wheeler

warranted. See, e.g., State v. Fernando A., 294 Conn.

1, 17, 981 A.2d 427 (2009).

III

The parties agree that, prior to the enactment of P.A.

14-20, a motor vehicle was not deemed underinsured

pursuant to the definition set forth in § 38a-336 (e)

where the liability limits in the tortfeasor’s policy were

equal to or greater than the underinsured benefits in

the claimant’s policy. Their fundamental disagreement

concerns whether the legislature, in enacting P.A. 14-

20, intended to alter that definition of an ‘‘underinsured

motor vehicle.’’

The legislative history of P.A. 14-20 is illuminating in

this regard. On March 4, 2014, the Connecticut Trial

Lawyers Association (association) submitted a letter to

the legislature’s Insurance and Real Estate Committee

in support of what ultimately became P.A. 14-20. It

stated in relevant part: ‘‘Following last year’s legislative

session, a joint study group comprised of both members

of the [association] and the Insurance Association of

Connecticut . . . was formed under the auspices of

the Connecticut Department of Insurance. Senate Bill

number 280 is the product of that working committee.

The legislation was drafted, and is agreed to by both

the [association and the Insurance Association of Connecticut] . . . . Under the current state of the law, an

underinsured motorist carrier is entitled to reduce its

sured motorist claim’’ and concluding that, ‘‘[i]t is clear . . . after examining

the text of § 38a-336 (e), that the ‘applicable’ liability coverage in this context

is the amount actually available and paid to the insured, after other claimants

are paid’’);Ismail v. Sanchez, Superior Court, judicial district of New Britain,

Docket No. CV-18-6045272-S (September 22, 2020) (Aurigemma, J.) (‘‘After

reviewing . . . the legislative history of P.A. 14-20, the court agrees with the

[defendant] that the public act did not change the definition of ‘underinsured

motorist’ [set forth in § 38a-336 (e)] but, rather, intended to clarify the law

concerning deduction to payments due to underinsured motorists. Since

the plaintiff and the tortfeasor had identical insurance coverage, the plaintiff

was not an underinsured motorist for purpose[s] of P.A. 14-20 . . . .’’).
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coverage for any payments made to the injured party

pursuant to the liability policy issued to the [tortfeasor].

The proposed bill does not seek to change this rule.

However, the Connecticut Appellate Court interpreted

this rule as allowing underinsured motorist carriers to

also claim a reduction for payments made to individuals

other than the claimant by the liability carrier for the

[tortfeasor]. Allstate [Ins. Co. v. Lenda, 34 Conn. App.

444, 642 A.2d 22, cert. denied, 231 Conn. 906, 648 A.2d

149 (1994), and cert. denied, 231 Conn. 906, 648 A.2d

149 (1994)]. A result of this ruling is that the claimant’s

uninsured motorist coverage can be reduced by payments they never received which were paid by the liability carrier for the [tortfeasor] to other individuals,

totally unrelated to the claimant. . . . [This bill] seeks

to correct this inequity by disallowing any reduction in

underinsured/uninsured motorist coverage for amounts

paid by or on behalf of any tortfeasor for bodily injury

to anyone other than the individuals insured under the

policy against which the claim is being made. [It] further

prohibits any reductions for payments made by the

tortfeasor on behalf of property damage.’’ (Emphasis

added.) That letter was admitted into the record of the

hearing of the Insurance and Real Estate Committee

on March 4, 2014.

On that date, the president of the association, Mike

Walsh, testified before the Insurance and Real Estate

Committee and reiterated that ‘‘the purpose of this . . .

proposed legislation . . . is to essentially correct what

we perceived to be an inequity . . . that was created by

the Connecticut Appellate Court [in Lenda] that allowed

[underinsured motorist] carriers to reduce their coverage for payments made by the liability carrier.’’ Conn.

Joint Standing Committee Hearings, Insurance and Real

Estate, Pt. 2, 2014 Sess., p. 489. Walsh was the only

person who testified before the committee on that bill,
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and the letter from the association was the only correspondence entered into the record. That testimony and

documentation indicate that the bill that ultimately

became P.A. 14-20 was drafted not in response to the

precedent of our Supreme Court such as Gould, Florestal and Doyle but, rather, in response to a decision

of this intermediate court decided in 1994—four years

after our Supreme Court’s pronouncement in Gould

regarding the proper meaning of the term ‘‘underinsured

motor vehicle.’’ That Appellate Court decision, therefore, demands closer scrutiny.

In Lenda, the defendant was injured in a five car

collision caused solely by the negligence of Peter Seymour, the tortfeasor. Allstate Ins. Co. v. Lenda, supra,

34 Conn. App. 445. Seymour’s automobile insurance

policy provided a total of $100,000 in liability coverage,

which was exhausted through payments to the defendant and four other injured individuals for both personal

injuries and property damage they sustained. Id., 445–46

and 446 n.3. The defendant was paid $73,071.51 as compensation for personal injuries and $6987.45 for property damage. Id., 446 n.3.

The defendant’s underinsured motorist policy in

effect at that time provided $100,000 in coverage. Under

the terms of that policy, the plaintiff insurer was ‘‘entitled to reduce the amount of underinsured motorist

benefits payable to [the defendant] by all the amounts

paid by or on behalf of Seymour to all injured parties

both for personal injury and for property damages.’’

(Emphasis added.) Id., 453. On appeal, the parties disagreed as to ‘‘whether [that] reduction is allowed under

§ 38a-334-6 of the Regulations of Connecticut State

Agencies.’’ Id. After examining the language of that regulation, this court concluded that, ‘‘[u]nder the terms and

provisions of [the defendant’s underinsured motorist

policy], [the plaintiff] was entitled to reduce the amount
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owed to [the defendant] for underinsured motorist coverage by all amounts paid by or on behalf of Seymour

to [the defendant] and to others . . . .’’ (Emphasis

added.) Id., 456. Although the defendant also argued

that ‘‘the limit of coverage should not be reduced by

the amounts paid for property damages,’’ this court

disagreed, stating: ‘‘From our review of the language

of the regulation, we conclude that the ‘damages’ for

which there may be a reduction of limits are not limited

to bodily injury. Therefore, under the language of the

regulation, damages paid for property damages as well

as damages paid for bodily injury may be deducted for

the purpose of reducing limits of coverage.’’ Id., 455.

The court thus concluded that ‘‘the language of § 38a334-6 of the Regulations of Connecticut State Agencies

authorizes [the] type of policy provision’’ contained in

the defendant’s underinsured motorist policy. Id., 456.

In Lenda, this court was presented with a question

regarding the proper application of § 38a-334-6 of the

Regulations of Connecticut State Agencies. Lenda did

not concern, and did not address, the proper construction of the term ‘‘underinsured motor vehicle.’’

The legislative history of the debate in the House of

Representatives demonstrates that the intent of P.A.

14-20 was to clarify the proper meaning of § 38a-334-6

of the Regulations of Connecticut State Agencies with

respect to offsets taken by underinsured motorist carriers. As our Supreme Court has observed, ‘‘the statement

of the legislator who reported the bill out of committee

carries particular weight and deserves careful consideration.’’ Robinson v. Unemployment Security Board of

Review, 181 Conn. 1, 15 n.4, 434 A.2d 293 (1980). In

moving for acceptance of the Insurance and Real Estate

Committee’s favorable report and passage of the bill

that became P.A. 14-20, Representative Robert W.

Megna, the chairman of that committee, introduced the

bill by stating that ‘‘this is a bill that’s been around our
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committee for the last several years. . . . It has to do

with what we refer to as offsets when it comes to

uninsured and underinsured motorists claims. . . .

[T]he Department of Insurance had established regulations talking about the application of that section of

the statute . . . and offsets. . . . We had several complaints. The trial attorneys came in front of our committee and it . . . became apparent that . . . there was

. . . some wiggle room [in the regulations] and some

insurers may have been taking offsets greater than what

was really intended under the statute . . . . It was a

few insurance companies that were taking additional

offsets. And what this language represents is an agreement between the industry and the trial attorneys on

how the correct application of that regulation put out

by the Department of Insurance should apply.’’ See 57

H.R. Proc., Pt. 11, 2014 Sess., pp. 3714–15.

Shortly thereafter, Megna reiterated that the bill was

‘‘just really a clarification about the regulation that the

Department of Insurance had put out.’’ Id., pp. 3719–20.

Megna explained that, as a matter of practice under

§ 38a-336, ‘‘most carriers . . . would simply take an

offset for . . . what part of the coverage of the tortfeasor that was paid to . . . the insured. And [what] happened was when the Department of Insurance drafted

the regulation one . . . or more carriers had interpreted it in such a way that they can take several offsets

for several individuals that were making claim[s] . . .

that were passengers of the car or were injured in some

manner. So essentially it’s really just clarifying . . . the

intent of the existing statute.’’ Id., p. 3720.

In his remarks, Representative Richard A. Smith

noted that ‘‘[t]his is an area of the law that I do practice

in so I’m interested in hearing the dialogue. I’m actually

happy to hear [that] this bill [is] being proposed. It’s

been an issue that we have dealt with . . . over the

past several years where the offsets have been reduced
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just based on the number of claimants disregarding who

actually received the money.’’ Id., p. 3732. The following

colloquy then ensued:

‘‘[Representative Smith]: But just so I’m sure and for

the colleagues out there who might be interested in

what [is] in this bill . . . if there is [a] $100,000 [underinsured] policy and a tortfeasor policy of $20,000 how

much available coverage then would be available to the

insured? . . .

‘‘[Representative Megna]: . . . I believe $80,000.

...

‘‘[Representative Smith]: And thank you for that. And

then if there were several claimants against that

[$]20,000 policy which probably would be a $40,000

multiple claim policy. If [$]40,000 of that policy was

paid out to various parties and the insured . . . actually received $30,000 total, how much then would be

left pursuant to his underinsured policy? . . .

‘‘[Representative Megna]: . . . [H]is offset would be

the $30,000 . . . which would leave $70,000 collectible

under his [underinsured] policy . . . .

‘‘[Representative Smith]: . . . Thank you. And that’s

how I . . . came to the same answer and we’re not

using hard math here so . . . I’m trying to keep it simple. But the [$]70,000 that’s available now to the insured

because he received [$]30,000 from the tortfeasor, that

[$]70,000 under this bill would still be available regardless of how much else the tortfeasor’s insurance company paid out. As long as the insured received [$]30,000

then the only offset would be that [$]30,000. Just want

to be clear. . . .

‘‘[Representative Megna]: . . . [T]hat’s the way I

understand it. . . . [T]he intent would be for those carriers not to take an offset greater than that [$]30,000

hypothetical if there were somebody else in the vehicle
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that also collected from the tortfeasor’s policy. And

that’s really . . . the essence of the bill before us.’’ Id.,

pp. 3732–35.

Megna then explained that P.A. 14-20 ‘‘comes out of

a regulation that the Department of Insurance had [that

provided] wiggle room for those few carriers that took

other injured [parties’] offsets off of the insured’s limit

of liability. . . . [The carriers] got that ability . . .

through a department regulation . . . . But yes the

intent is to clarify the statute so to speak. . . . [B]ut

the argument [for this bill] seemed to have come out of

. . . the drafting of this regulation by the Department

of Insurance that had to do with offsets under that

section of the statute.’’ Id., p. 3736.

Shortly thereafter, another pertinent colloquy occurred

between Representatives Smith and Megna:

‘‘[Representative Smith]: . . . [L]adies and gentlemen of the Chamber, this is a significant point so for

legislative intent purposes what I’m hearing [from] the

good Chairman is that . . . the intent of the current

legislation is that the offset should be only that amount

which the insured actually received. That was the intent

then, that is the intent now and that will be the intent

moving forward . . . . Is that fair to say? . . .

‘‘[Representative Megna]: . . . Absolutely. That is

the intent. . . . That is the intent of this bill. That’s the

intent of the legislation. . . .

‘‘[Representative Smith]: . . . I appreciate the Chairman’s confirmation of the intent of this statute, the

intent of the existing law . . . . The intent being that

offsets are only those amounts that the insured actually

received. That’s our current law. This bill just clarifies

that law.’’ Id., pp. 3743–45.

Furthermore, although the legislative history contains

several hypothetical scenarios that outline when such
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offsets properly may be taken, none involved the scenario at issue here, in which the tortfeasor and the

claimant had identical coverage limits in their respective insurance policies. In every such hypothetical, the

claimant’s underinsured motorist coverage exceeded

the limits of tortfeasor’s liability coverage.9

The legislative history thus confirms that the intent

of P.A. 14-20 was to clarify the extent to which underinsured motorist carriers properly may take offsets pursuant to § 38a-334-6 of the Regulations of Connecticut

State Agencies and § 38a-336 (b). Indeed, the title of

P.A. 14-20 is ‘‘An Act Concerning Uninsured and Underinsured Motorist Coverage Offsets.’’ See Peck v. Jacquemin, 196 Conn. 53, 68 n.17, 491 A.2d 1043 (1985) (‘‘[t]he

title and stated purpose of legislation are, while not

conclusive, valuable aids to construction’’).

We have carefully reviewed the legislative history

of P.A. 14-20. Nothing in it suggests that the General

Assembly intended to alter the definition of ‘‘underinsured motor vehicle’’ contained in § 38a-336 (e).10 If the

legislature wanted to amend that statutory definition,

it certainly knew how to do so. See Scholastic Book

Clubs, Inc. v. Commissioner of Revenue Services, 304

Conn. 204, 219, 38 A.3d 1183 (‘‘it is a well settled principle of statutory construction that the legislature knows

how to convey its intent expressly’’), cert. denied, 568

U.S. 940, 133 S. Ct. 425, 184 L. Ed. 2d 255 (2012). The

9 There was one instance in which Representative Megna began to reference a situation in which both the tortfeasor’s liability coverage and the

claimant’s underinsured motorist coverage were $100,000. Megna stopped

himself midsentence when he realized that, in such a scenario, ‘‘if [the

claimant] had [a] $100,000 limit it would cancel it out,’’ and then immediately

altered the hypothetical to one in which the claimant had a $200,000 limit.

57 H.R. Proc., supra, p. 3754, remarks of Representative Megna. 10 Although the legislative history is replete with references to underinsured motorist coverage, the term ‘‘underinsured motor vehicle’’ does not

appear once in that history.
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legislature nevertheless made no changes to § 38a336 (e).

We also are mindful that ‘‘[t]he legislature is presumed

to know the judicial interpretation placed upon a statute

. . . and [is] presumed . . . to be cognizant of judicial

decisions relevant to the subject matter of a statute

. . . and to know the state of existing relevant law

. . . .’’ (Citation omitted; internal quotation marks

omitted.) State v. Fernando A., supra, 294 Conn. 19;

see also Alvarez v. New Haven Register, Inc., 249 Conn.

709, 722, 735 A.2d 306 (1999) (‘‘[t]he legislature is presumed to be aware of [our Supreme Court’s] decisions’’). We therefore must presume that the legislature,

in enacting P.A. 14-20, was aware that our Supreme

Court repeatedly has held that the ‘‘[a]pplication of

§ 38a-336 involves two separate inquiries. First, it must

be determined whether the tortfeasor’s vehicle is an

‘underinsured vehicle’ within the meaning of the statute.

Second, after this determination is made and underinsured motorist coverage is found to be applicable, the

finder of fact calculates the amount of the award to be

paid the victim.’’ Covenant Ins. Co. v. Coon, supra, 220

Conn. 33; see also Doyle v. Metropolitan Property &

Casualty Ins. Co., supra, 252 Conn. 84. We also must

presume that the legislature was aware that our Supreme

Court consistently has held that the former inquiry

entails application of the definition of ‘‘underinsured

motor vehicle’’ set forth in § 38a-336 (e); see Doyle v.

Metropolitan Property & Casualty Ins. Co., supra,

87–88; Florestal v. Government Employees Ins. Co.,

supra, 236 Conn. 301; American Motorists Ins. Co. v.

Gould, supra, 213 Conn. 632; which requires a comparison of the coverage limits contained in the respective

insurance policies of the tortfeasor and the claimant.

In light of the foregoing, we are hard-pressed to conclude that the legislature intended to amend that critical
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statutory definition—and overrule that substantial body

of Supreme Court precedent—sub silentio.11

IV

We therefore conclude that the legislature, in enacting

P.A. 14-20, did not intend to alter the definition of an

‘‘underinsured motor vehicle’’ or to overrule the precedent of our Supreme Court in Doyle v. Metropolitan

Property & Casualty Ins. Co., supra, 252 Conn. 79,

Florestal v. Government Employees Ins. Co., supra, 236

Conn. 299, and American Motorists Ins. Co. v. Gould,

supra, 213 Conn. 625, as the plaintiffs suggest. To the

contrary, our review of the legislative history reveals

that P.A. 14-20 was enacted in direct response to this

court’s decision in Lenda, which held that § 38a-334-6

of the Regulations of Connecticut State Agencies permitted insurance carriers to offset underinsured motorist benefits owed to an insured claimant ‘‘by all amounts

paid by or on behalf of [the tortfeasor] to [the insured

claimant] and to others for both bodily injury and property damages.’’ (Emphasis added.) Allstate Ins. Co. v.

Lenda, supra, 34 Conn. App. 456. As the association

emphasized in its March 4, 2014 letter to the legislature’s

Insurance and Real Estate Committee, the bill that

became P.A. 14-20 was drafted ‘‘to correct this inequity

by disallowing any reduction in underinsured/uninsured

motorist coverage for amounts paid by or on behalf of

any tortfeasor for bodily injury to anyone other than

the individuals insured under the policy against which

11 See, e.g., Gilmore v. Pawn King, Inc., 313 Conn. 535, 569–72, 98 A.3d

808 (2014) (Espinosa, J., dissenting) (noting that our Supreme Court ‘‘consistently [has] required clear evidence in the legislative record to support [the]

conclusion’’ that ‘‘a legislative amendment was intended to overrule our

prior decision construing a statute’’ and ‘‘that in the absence of clear and

unequivocal evidence of legislative intent to overrule one of our prior interpretive decisions, that decision continues to control the meaning of the

relevant statutory provision’’); see id. (Espinosa, J., dissenting) (discussing

case law construing ‘‘clear evidence’’).
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the claim is being made. [It] further prohibits any reductions for payments made by the tortfeasor on behalf of

property damage.’’ Simply put, § 38a-336 (b), as

amended by P.A. 14-20, precludes the practice affirmatively condoned by this court in Lenda.

The plaintiffs nonetheless contend that, because our

Supreme Court has held that § 38a-336 is a remedial

statute, it must be construed liberally to protect people

injured by underinsured motorists. See, e.g., Tannone

v. Amica Mutual Ins. Co., supra, 329 Conn. 673 (‘‘public

policy dictates that every insured is entitled to recover

for the damages he or she would have been able to

recover if the uninsured motorist [responsible for the

insured’s injury] had maintained a policy of liability

insurance’’ (internal quotation marks omitted)); but see

Smith v. Safeco Ins. Co. of America, 225 Conn. 566,

573, 624 A.2d 892 (1993) (‘‘underinsured motorist protection is not intended to provide a greater recovery

than would have been available from the tortfeasor’’).

In so doing, they overlook the fact that our Supreme

Court has expressly declined to apply that maxim of

liberal construction in the specific context now before

us. As the court explained: ‘‘[I]n other contexts we have

described our uninsured and underinsured motorist

coverage statute as having a broad and remedial purpose. . . . In none of those cases, however, did we

employ that description in order to decide whether a

vehicle met the statutory definition of an underinsured

motor vehicle. Furthermore, such a description cannot

override the purpose of the statute to put the injured

party in no better or worse a position than he would

have been in had the tortfeasor carried adequate insurance. Thus, the description of the statute as remedial

cannot convert an adequately insured motor vehicle

into an underinsured motor vehicle.’’ (Citations omitted; emphasis in original.) Doyle v. Metropolitan Property & Casualty Ins. Co., supra, 252 Conn. 88 n.5. That

logic applies equally here.
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There may well be cases in which an inequity results

from the application of the underinsured motorist laws

of this state when an accident involves multiple claimants. As our Supreme Court aptly noted, ‘‘redress from

any such unfairness must be sought from the legislature,

not from the courts . . . .’’12 Florestal v. Government

Employees Ins. Co., supra, 236 Conn. 310; see also

Dugas v. Lumbermens Mutual Casualty Co., 217 Conn.

631, 647, 587 A.2d 415 (1991) (‘‘even if the plaintiff is

correct that this result [under the statute in question]

is anomalous, his remedy lies with the legislature or

the insurance commissioner, not with this court’’); Roy

v. Centennial Ins. Co., 171 Conn. 463, 476, 370 A.2d

1011 (1976) (‘‘[t]his court cannot . . . by a tortured

construction of the statutory . . . provisions, indirectly eliminate possible inequities in coverage, where

the legislature has failed to do so directly’’). Principles

of judicial restraint constrain this court from adopting

a judicial construction of § 38a-336 that is not supported

by either the plain language of that statute or extratextual sources.

In light of the foregoing, and applying the well established precedent of our Supreme Court to the present

case, the Wheeler vehicle plainly is not an underinsured

motor vehicle as that term is used in § 38a-336. See

Doyle v. Metropolitan Property & Casualty Ins. Co.,

supra, 252 Conn. 87–88; Florestal v. Government

12 For example, Colorado previously defined an underinsured motor vehicle in relevant part as a motor vehicle with liability coverage limits that

were less than the insured’s underinsured motorist limits or less than the

insured’s underinsured motorist limits after having been ‘‘[r]educed by payments to persons other than an insured in the accident . . . .’’ Colo. Rev.

Stat. § 10-4-609 (1995); see also Leetz v. Amica Mutual Ins. Co., 839 P.2d

511, 512–13 (Colo. App. 1992) (interpreting § 10-4-609 and concluding that

its reduction provision was not applicable to payments made to persons who

were insureds under underinsured motorist policy). In 2007, the Colorado

legislature amended § 10-4-609 and deleted that reduction provision. See

2007 Colo. Sess. Laws 1921.
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Employees Ins. Co., supra, 236 Conn. 301; American

Motorists Ins. Co. v. Gould, supra, 213 Conn. 632. The

tortfeasor’s liability coverage is not less than, but rather

is identical to, the plaintiffs’ underinsured motorist coverage. See General Statutes § 38a-336 (e). For that reason, the trial court improperly denied the defendant’s

motion for summary judgment.

The judgment is reversed and the case is remanded

with direction to render judgment for the defendant.

In this opinion the other judges concurred.