Menard v. State ( 2021 )

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SCOTT MENARD v. STATE OF CONNECTICUT
DARREN CONNOLLY v. STATE
OF CONNECTICUT
ROBERT ZDROJESKI v. STATE
OF CONNECTICUT
(AC 42342)
Bright, C. J., and Moll and Bear, Js.
Syllabus
The plaintiffs, M and C, Connecticut State Police troopers who suffered
injuries when a motor vehicle driven by a nonparty tortfeasor, B, struck
a police cruiser, sending it into physical contact with them, sought to
recover underinsured motorist benefits allegedly due under insurance
coverage provided by the defendant state of Connecticut, a self-insurer,
pursuant to a collective bargaining agreement. Following a bench trial,
the trial court found, inter alia, that, to the extent B was underinsured,
the state was contractually obligated to provide coverage to the plain-
tiffs, the plaintiffs’ claims for damages caused by the alleged post-trau-
matic stress disorder (PTSD) they developed were not compensable
under the underinsured motorist claims statute (§ 38a-336), and it calcu-
lated the plaintiffs’ damages. The plaintiffs filed a joint appeal to this
court. The parties then filed a stipulation before the trial court regarding
sums that the plaintiffs had already received, and the court held a hearing
to consider any reductions to the plaintiffs’ damages. It concluded that
certain workers’ compensation benefits the plaintiffs had received were
deductible from the plaintiffs’ damages, but that certain recoveries the
plaintiffs received under the Dram Shop Act (§ 30-102) were not, adjusted
the plaintiffs’ damages accordingly, and rendered judgments for the
plaintiffs. The plaintiffs then filed an amended joint appeal, and the
state filed a cross appeal to this court. Held:
1. This court concluded that the plaintiffs’ original joint appeal was not
taken from final judgments and it must be dismissed for lack of subject
matter jurisdiction, but the plaintiffs’ amended joint appeal was jurisdic-
tionally proper; final judgments were not rendered in the trial court
until the court had reduced the plaintiffs’ damages to account for certain
sums received by the plaintiffs, which occurred after the original appeal
had been filed; the plaintiffs’ amended joint appeal encompassed all of
the claims raised by the plaintiffs in their original joint appeal, and this
court could review all of the plaintiffs’ claims in the context of their
amended joint appeal.
2. The trial court properly declined to award the plaintiffs damages related
to their claims of PTSD, as those claims were not compensable under
§ 38a-336: guided by our Supreme Court’s decision in Moore v. Continen-
tal Casualty Co. (252 Conn. 405), in which the term bodily was deter-
mined to relate to something physical and corporeal, as opposed to
purely emotional, this court concluded that bodily injury in § 38a-336
(a) (1) (A) must necessarily be physical in nature, and, under that
interpretation, PTSD, in and of itself as a purely emotional injury, could
not be construed as a ‘‘bodily injury’’ within the purview of § 38a-336;
moreover, guided by the rationale in Moore, in which the question was
the legal meaning of ‘‘bodily injury’’ as defined in an insurance policy
and not the medical or scientific question of the degree to which the
mind and the body affect each other, this court was not convinced that
the PTSD purportedly developed by the plaintiffs was transformed into a
‘‘bodily injury’’ under the statute by virtue of the physical manifestations
accompanying it.
3. The trial court properly reduced the plaintiffs’ damages by the sums of
certain workers’ compensation benefits they had received, as the statu-
tory and regulatory scheme governing underinsured motorist coverage
in Connecticut did not impose a requirement on a self-insurer to notify
claimants of an election of permissive offsets under the applicable state
regulation (§ 38a-334-6): although, as a self-insurer, the state must main-
tain a preaccident writing reflecting its election of permissive regulatory
offsets as mandated by Piersa v. Phoenix Ins. Co. (273 Conn. 519) and
clarified in Garcia v. Bridgeport (306 Conn. 340), it had no legal obliga-
tion to provide its employees with notice of its election to offset its
liability for underinsured motorist benefits by the amount of any work-
ers’ compensation benefits paid, as our Supreme Court expressly con-
strued § 38a-334-6 of the regulations not to be a notice provision,
determining that it served the substantive function of specifying the
basic requirement of how an insurer may limit its liability, and the court
made no mention of self-insurers providing claimants with copies of
such written documents or otherwise notifying claimants of the election
of permissive regulatory offsets; accordingly, it was sufficient for the
state to maintain a written memorandum containing its election in its
files as a public record.
4. The trial court committed error in declining to reduce C’s damages by
the sums he had recovered pursuant to the Dram Shop Act, as C was
being compensated twice for the same injury; the parties stipulated that,
among other sums received by C, he recovered certain sums from an
establishment under the act as compensatory damages, and, without a
reduction of C’s damages to account for his dram shop recovery, C was
compensated twice for the same injury in violation of the common-law
rule precluding double recovery, a legal principle ingrained in this state’s
underinsured motorist laws.
5. This court concluded that, because neither plaintiff was entitled to recover
damages against the state, the trial court, on remand, must render judg-
ments in favor of the state in the plaintiffs’ respective cases.
Argued March 9—officially released October 19, 2021
Procedural History
Actions to recover underinsured motorist benefits
allegedly due under automobile insurance coverage pro-
vided by the defendant pursuant to a collective bar-
gaining agreement, brought to the Superior Court in
the judicial district of Hartford, where the matters were
consolidated and tried to the court, Shapiro, J.; decision
for the plaintiffs, and the plaintiffs appealed to this
court; thereafter, the court, Hon. Robert B. Shapiro,
judge trial referee, granted in part the defendant’s
motion for remittitur and a collateral source hearing
and rendered judgments for the plaintiffs, from which
the plaintiffs filed an amended appeal and the defendant
cross appealed to this court; subsequently, the plaintiff
Robert Zdrojeski withdrew his appeal. Appeal dis-
missed in part; reversed in part; judgments directed.
Daniel J. Krisch, with whom, on the brief, was Jeffrey
L. Ment, for the appellants-cross appellees (plaintiffs
Scott Menard and Darren Connolly).
David A. Haught, with whom, on the brief, was Lori-
nda S. Coon, for the appellee-cross appellant (state).
Opinion
MOLL, J. In these underinsured motorist matters, the
plaintiffs, Scott Menard and Darren Connolly, jointly
appeal, and the defendant, the state of Connecticut,
cross appeals, from the judgments of the trial court
rendered in favor of the plaintiffs following a bench
trial. In addition, the state cross appeals from the judg-
ment of the trial court rendered in favor of a third
plaintiff, Robert Zdrojeski,1 after the bench trial. On
appeal, the plaintiffs claim that the court improperly
(1) declined to award them damages in relation to the
post-traumatic stress disorder (PTSD) that they pur-
portedly developed, and (2) reduced their damages by
the sums of workers’ compensation benefits that they
had received. On cross appeal, the state claims that the
court improperly declined to reduce the plaintiffs’ dam-
ages by the sums that they had recovered pursuant to
the Connecticut Dram Shop Act (dram shop act), Gen-
eral Statutes § 30-102. We dismiss, sua sponte, the plain-
tiffs’ original joint appeal for lack of a final judgment.
See part I of this opinion. As for the amended joint
appeal and the cross appeal, we (1) reverse the judg-
ments rendered in favor of the plaintiffs and (2) affirm
the judgment rendered in favor of Zdrojeski.2
The following facts, as set forth by the trial court, and
procedural history are relevant to our resolution of this
appeal and this cross appeal. ‘‘[O]n September 1, 2012,
[Menard, Connolly, and Zdrojeski] were on duty as Con-
necticut state troopers with the Connecticut State
Police. At approximately 1:40 a.m. . . . Connolly was
on patrol on Interstate 84 and pulled over a vehicle
traveling westbound, due to suspected intoxicated driv-
ing, at exit 46 in Hartford, the Sisson Avenue exit. After
reaching the bottom of the exit ramp, Connolly parked
his [police] cruiser on the right side of the exit, under
the directional sign, to the rear of the vehicle, which
had stopped before the intersection with Sisson Ave-
nue. The Sisson Avenue exit has four lanes at this point.
‘‘Connolly exited his cruiser to speak with the driver
of the vehicle and then returned to his cruiser. . . .
Menard drove up to the scene also, parked his police
cruiser and also exited to speak with the occupants of
the vehicle [that] . . . Connolly had pulled over. Both
cruisers had their lights activated.
‘‘Connolly and Menard then began to approach the
vehicle. Unbeknownst to Connolly and Menard . . .
Zdrojeski also responded to the scene in his police
cruiser. He parked his cruiser to the rear and left of
Connolly’s cruiser, and to the left of Menard’s cruiser,
in the right center travel lane, also with lights activated.
Just after Zdrojeski arrived, another vehicle, driven by
nonparty William Bowers, struck Zdrojeski’s cruiser
from behind, sending Zdrojeski’s parked cruiser for-
ward toward Connolly and Menard, where physical con-
tact occurred.
‘‘Menard attempted to jump clear of the cruiser, tum-
bled in the air, and came down on his head between
Zdrojeski’s cruiser and the stopped vehicle. Connolly
pushed himself away from the cruiser, using his right
arm against the hood of the cruiser. At the time of the
impact, Zdrojeski had not gotten out of his cruiser.
[Menard, Connolly, and Zdrojeski] were ambulatory
after the accident and were transported by ambulance
to Hartford Hospital.’’
On June 10, 2014, the plaintiffs commenced separate
underinsured motorist actions against the state. In the
plaintiffs’ respective one count complaints, which were
substantively identical, the plaintiffs alleged in relevant
part that (1) they sustained injuries from the accident,
which occurred as a result of the negligence and/or
carelessness of Bowers (nonparty tortfeasor), (2) their
personal automobile liability insurance policies and the
nonparty tortfeasor’s automobile liability insurance pol-
icy were insufficient to compensate them in full for
their injuries, (3) at the time of the accident, the state
carried automobile liability insurance, including under-
insured motorist coverage, for their benefit pursuant
to a collective bargaining agreement between the state
and the state police union, (4) the state was self-insured
with respect to its underinsured motorist coverage, (5)
pursuant to General Statutes § 38a-336,3 the state was
required to provide them with underinsured motorist
coverage, and (6) the state had not disbursed underin-
sured motorist benefits to them for their injuries.
On January 30, 2017, the state answered the plaintiffs’
complaints, admitting that it provides underinsured
motorist coverage to state troopers who are parties to
the aforementioned collective bargaining agreement,
that it is self-insured with respect to that coverage, and
that it had not remitted underinsured motorist benefits
to the plaintiffs in relation to the accident. The state
otherwise denied the plaintiffs’ material allegations or
left the plaintiffs to their proof. The state also asserted
three special defenses. In its first special defense, the
state alleged that the plaintiffs’ recoveries, if any, were
‘‘limited to the $1,000,000 amount of underinsured
motorist coverage as set forth in the [state’s] [s]elf-
[i]nsured [m]otorist [c]overage [f]orm and any other
terms and conditions of the [state’s] self-insured cover-
age for the Department of Public Safety.’’ In its second
and third special defenses, the state alleged that, in the
event that the plaintiffs succeeded on their claims, the
state was entitled to certain reductions and setoffs. On
January 31, 2017, the plaintiffs filed replies denying the
special defenses.
The plaintiffs’ respective cases were consolidated for
trial and tried to the court, Shapiro, J., over the course
of several days in April and May, 2018. At the beginning
of the first day of trial, at the parties’ joint request, the
court agreed to ‘‘focus in this initial stage on the ques-
tions of liability and damages without any question of
offsets or coverage or collateral sources. And that’s simi-
lar to the way a lot of cases are presented so we need
not consider that. And [the court] understand[s] those
issues are for a later day if necessary and that you’ll
be—if needed, we’ll schedule another day for a hearing
about those issues and hearing evidence that relates to
that or to those things.’’ Following trial, the parties filed
posttrial briefs.
On August 24, 2018, the court issued a combined mem-
orandum of decision addressing the plaintiffs’ respec-
tive cases. With respect to liability, the court determined
that (1) the accident was caused by the negligence of
the nonparty tortfeasor, (2) the plaintiffs’ conduct did
not amount to negligence, and (3) to the extent that
the nonparty tortfeasor was underinsured, the state was
contractually obligated to provide underinsured motor-
ist coverage to the plaintiffs for damages caused by
the nonparty tortfeasor. As to damages, the court first
rejected a request by the plaintiffs to award them dam-
ages stemming from the PTSD that they allegedly devel-
oped, determining that (1) the plaintiffs’ PTSD claims
were not compensable under § 38a-336, and (2) the
opinion of the plaintiffs’ expert witness, Jennifer Honen,
a licensed professional counselor who diagnosed the
plaintiffs with PTSD, was not credible.
The court proceeded to calculate the plaintiffs’ dam-
ages. The court determined that Menard’s damages
were $171,965.40, consisting of: $43,218.63 in lost
wages; $11,839.68 in lost overtime; $56,907.09 in medical
expenses; and $60,000 in noneconomic damages. The
court calculated Connolly’s damages to be $186,738.67,
consisting of: $53,144.43 in lost wages; $27,409 in lost
overtime; $36,185.24 in medical expenses; and $70,000
in noneconomic damages. In light of the parties’ agree-
ment at trial, the court ordered the parties to file a
stipulation ‘‘account[ing] for items of economic dam-
ages which have been paid and for medical expense
discounts . . . .’’ The court further stated that it would
render judgments thereafter.
On September 11, 2018, the plaintiffs jointly filed a
combined motion to reconsider and for additur, assert-
ing that the court improperly declined to award them
PTSD-related damages. On October 1, 2018, the state
filed an objection. On November 13, 2018, after hearing
argument on October 23, 2018, the court denied the
plaintiffs’ combined motion. On December 3, 2018, the
plaintiffs filed a joint appeal.
On February 13, 2019, the parties filed a stipulation
regarding sums that the plaintiffs had received ‘‘on
account of the personal injuries sustained in the motor
vehicle collision of September 1, 2012.’’ As to Menard,
the parties stipulated that he had recovered $253,723.30,
consisting of: $130,223.63 in workers’ compensation
benefits for medical bills, lost wages, and permanent
partial disabilities, less $3583.33 that was repaid on a
workers’ compensation lien; a $10,750 recovery from
the nonparty tortfeasor; a $33,000 personal underin-
sured motorist coverage payment; and an $83,333 dram
shop payment.4 As to Connolly, the parties stipulated
that he had recovered $224,532, consisting of: $134,033
in workers’ compensation benefits for medical bills,
lost wages, and permanent partial disabilities, less
$3583 that was repaid on a workers’ compensation lien;
a $10,750 recovery from the nonparty tortfeasor; and
an $83,332 dram shop payment.5 In addition, the parties
represented that they were making no stipulations as
to (1) ‘‘the state’s right of [setoff] under the terms of
the underinsured motorist coverage provided to the
plaintiffs,’’ (2) whether the stipulated amounts could
be set off or credited against the damages awarded by
the court, and (3) whether the plaintiffs’ dram shop
recoveries could be set off against the damages awarded
by the court.
On March 6, 2019, the court held a hearing to consider
any reductions to the plaintiffs’ damages.6 The parties
submitted briefs addressing whether the plaintiffs’ dam-
ages could be reduced to account for (1) the workers’
compensation benefits that the plaintiffs had received,
and (2) the plaintiffs’ dram shop recoveries.7 On May
16, 2019, the court issued a combined memorandum of
decision concluding that the workers’ compensation
benefits were deductible from the plaintiffs’ damages,
but that the dram shop recoveries were not. Taking into
account the workers’ compensation benefits, along with
the additional sums stipulated to by the parties other
than the dram shop payments, the court reduced Men-
ard’s damages to zero dollars and Connolly’s damages
to $32,905.67. The court then rendered judgments for
the plaintiffs.8 On May 24, 2019, the plaintiffs filed an
amended joint appeal to encompass the judgments ren-
dered by the court following the May 16, 2019 decision.
On May 31, 2019, the state filed a cross appeal. Addi-
tional facts and procedural history will be set forth as
necessary.
I
As a preliminary matter, we address, sua sponte,
whether the plaintiffs’ original joint appeal, filed on
December 3, 2018, was taken from final judgments.
‘‘The jurisdiction of the appellate courts is restricted to
appeals from judgments that are final. . . . The policy
concerns underlying the final judgment rule are to dis-
courage piecemeal appeals and to facilitate the speedy
and orderly disposition of cases at the trial court level.
. . . The appellate courts have a duty to dismiss, even
on [their] own initiative, any appeal that [they lack]
jurisdiction to hear. . . . We therefore must always
determine the threshold question of whether the appeal
is taken from a final judgment before considering the
merits of the claim.’’ (Citations omitted; internal quota-
tion marks omitted.) Wolfork v. Yale Medical Group,
335 Conn. 448, 459, 239 A.3d 272 (2020). We conclude
that the original joint appeal was not taken from final
judgments, and, therefore, we lack subject matter juris-
diction to entertain it. We further conclude that the
amended joint appeal is jurisdictionally proper and
encompasses the claims raised by the plaintiffs in the
original joint appeal.
Here, in the August 24, 2018 combined decision, the
court determined in relevant part that, insofar as the
nonparty tortfeasor was underinsured, the state was
contractually required to afford underinsured motorist
coverage to the plaintiffs for damages caused by the
nonparty tortfeasor. In addition, the court calculated
the full amount of damages established by the plaintiffs;
however, the court expressly stated that it would render
judgments in the plaintiffs’ respective cases after the
parties had filed a stipulation, in accordance with their
agreement at trial, ‘‘account[ing] for items of economic
damages which have been paid and for medical
expenses discounts . . . .’’ The record reflects that the
court rendered judgments in the plaintiffs’ respective
cases on May 16, 2019, after it had reduced the plaintiffs’
damages to account for certain sums received by the
plaintiffs. Under these circumstances, we conclude that
no appealable final judgments were rendered until May
16, 2019. Accordingly, the original joint appeal, filed on
December 3, 2018, was not taken from final judgments
and, therefore, must be dismissed for lack of subject
matter jurisdiction.
Nevertheless, we may consider all of the plaintiffs’
claims in the context of the amended joint appeal, filed
on May 24, 2019, which was taken from final judgments.
See Practice Book § 61-9 (‘‘[i]f the original appeal is
dismissed for lack of jurisdiction, any amended appeal
shall remain pending if it was filed from a judgment or
order from which an original appeal properly could have
been filed’’). The amended joint appeal encompasses
all of the claims pursued by the plaintiffs in the original
joint appeal. Thus, all of the plaintiffs’ claims in the
context of their amended joint appeal are properly
before us for review. See Featherston v. Katchko & Son
Construction Services, Inc., 201 Conn. App. 774, 783,
244 A.3d 621 (2020), cert. denied, 336 Conn. 923, 246
A.3d 492 (2021), and cases cited therein.
II
Turning to the plaintiffs’ amended joint appeal, the
plaintiffs claim that the trial court improperly (1)
declined to award them PTSD-related damages, and (2)
reduced their damages by the sums of the workers’
compensation benefits that they had received. We dis-
agree.
A
We first address the plaintiffs’ claim that the court
improperly declined to award them PTSD-related dam-
ages. The dispositive contention raised by the plaintiffs
is that the court committed error in concluding that
their PTSD claims are not compensable under § 38a-
336. We are not persuaded.9
The following additional facts and procedural history
are relevant to our resolution of this claim. In their
respective complaints, the plaintiffs alleged that, as a
result of the accident, they sustained physical injuries
and PTSD. During trial, in addition to testifying as to
the physical injuries that they suffered, the plaintiffs
testified as to emotional distress that they experienced
following the accident. Menard testified, inter alia, that
he had nightmares, intrusive thoughts, difficulty sleep-
ing, and flashbacks of the accident, that he would wake
up in cold sweats and ‘‘jump out of bed and scream,’’
that he felt hypervigilant, short-tempered, and antiso-
cial, and that he could not stand outside of his patrol
car without feeling fearful. Connolly testified, inter alia,
that he had irritability, nightmares, difficulty sleeping,
and flashbacks of the accident. The plaintiffs’ expert
witness testified that she treated the plaintiffs following
the accident and that it was her opinion that the plain-
tiffs had developed PTSD stemming from the accident.
In their joint posttrial brief, the plaintiffs both
requested damages predicated, in part, on the alleged
PTSD that they had developed. In its respective posttrial
brief, the state argued that the plaintiffs could not
recover damages for PTSD because the coverage that
the state afforded them was premised on § 38a-336,
which permits recovery for ‘‘damages because of bodily
injury . . . .’’ General Statutes § 38a-336 (a) (1) (A).
The state posited that the PTSD purportedly developed
by the plaintiffs neither constituted a ‘‘bodily injury’’
compensable under the statute nor was derived from
a predicate ‘‘bodily injury.’’
In declining to award the plaintiffs PTSD-related dam-
ages, the court determined that the terms of § 38a-336
are plain and unambiguous, although the court
observed that the statute did not define ‘‘ ‘bodily
injury.’ ’’ Relying on decisions by our Supreme Court
supporting the proposition that ‘‘emotional distress,
without accompanying physical harm, does not consti-
tute a ‘bodily injury,’ ’’ the court concluded that the
state’s coverage, which coincided with § 38a-336, did
not encompass the plaintiffs’ PTSD claims. The court
continued: ‘‘Here . . . the plaintiffs’ PTSD claims are
not a result of their personal injuries. Rather, they are
premised on having gone through a life-threatening acci-
dent and having to reexperience similar work-related
scenarios on a regular basis. Thus, there is no underin-
sured motorist coverage for these aspects of their
claims since they do not constitute ‘damages because
of bodily injury’ [under the statute].’’
In their combined motion to reconsider and for addi-
tur, the plaintiffs asserted that the PTSD that they alleg-
edly developed was accompanied by physical manifes-
tations, ‘‘including sleeplessness, hyper alertness, rapid
heart beating, sweating, anxiety, and outbursts of
anger,’’ such that the PTSD from which they suffer
constitutes a ‘‘bodily injury’’ under § 38a-336 (a) (1) (A).
In its objection, the state argued that the PTSD allegedly
developed by the plaintiffs was a purely psychological
injury and that the court correctly concluded that the
statutory term ‘‘bodily injury’’ does not encompass such
emotional distress. In denying the plaintiffs’ combined
motion to reconsider and for additur, the court main-
tained its reliance on precedent by our Supreme Court,
providing that a ‘‘ ‘bodily injury’ ’’ does not encompass
‘‘ ‘emotional distress, without accompanying physical
harm,’ ’’ and declined to consider out-of-state authority
presented by the plaintiffs for the first time in their
combined motion.
On appeal, the plaintiffs contend that the court’s
interpretation of § 38a-336 (a) (1) (A) was improperly
narrow insofar as the court determined that the PTSD
that they allegedly developed did not constitute a
‘‘bodily injury’’ under the statute. The plaintiffs assert
that § 38a-336 (a) (1) (A) is ambiguous because there
is more than one reasonable reading of the statute vis-
à-vis whether PTSD, with accompanying physical mani-
festations, is encapsulated within the terms of the stat-
ute requiring automobile liability insurance policies to
provide uninsured and underinsured motorist coverage
‘‘for the protection of persons insured thereunder who
are legally entitled to recover damages because of
bodily injury . . . .’’ (Emphasis added.) General Stat-
utes § 38a-336 (a) (1) (A). This claim is unavailing.
The plaintiffs’ claim requires us to construe § 38a-
336 (a) (1) (A), which ‘‘presents a question of statutory
interpretation over which our review is plenary.’’ (Inter-
nal quotation marks omitted.) Reserve Realty, LLC v.
Windemere Reserve, LLC, 205 Conn. App. 299, 325,
A.3d (2021). ‘‘When construing a statute, [o]ur fun-
damental objective is to ascertain and give effect to the
apparent intent of the legislature. . . . In seeking to
determine that meaning, General Statutes § 1-2z10
directs us first to consider the text of the statute itself
and its relationship to other statutes. If, after examining
such text and considering such relationship, the mean-
ing 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. . . . In interpreting statutes, words and
phrases are to be construed according to their com-
monly approved usage . . . . Generally, in the absence
of statutory definitions, we look to the contemporane-
ous dictionary definitions of words to ascertain their
commonly approved usage.’’ (Citation omitted; footnote
in original; internal quotation marks omitted.) Id.
Section 38a-336 (a) (1) (A) provides: ‘‘Each automo-
bile liability insurance policy shall provide insurance,
herein called uninsured and underinsured motorist cov-
erage, in accordance with the regulations adopted pur-
suant to section 38a-334, with limits for bodily injury
or death not less than those specified in subsection (a)
of section 14-112, for the protection of persons insured
thereunder who are legally entitled to recover damages
because of bodily injury, including death resulting
therefrom, from owners or operators of uninsured
motor vehicles and underinsured motor vehicles and
insured motor vehicles, the insurer of which becomes
insolvent prior to payment of such damages.’’
The parties do not cite, and our research has not
revealed, any appellate case in this state that has inter-
preted the term ‘‘bodily injury’’ as used in § 38a-336 (a)
(1) (A), which is not defined in the statute. We note
that § 38a-334-2 (a) of the Regulations of Connecticut
State Agencies, promulgated by the insurance commis-
sioner pursuant to General Statutes § 38a-334,11 defines
‘‘[b]odily injury,’’ as used in §§ 38a-334-1 through 38a-
334-9 of the regulations, to mean ‘‘bodily injury, sickness
or disease, including death resulting therefrom . . . .’’
Section 38a-334-6 (a) of the regulations contains lan-
guage similar to the statute, providing in relevant part:
‘‘The insurer shall undertake to pay on behalf of the
insured all sums which the insured shall be legally enti-
tled to recover as damages from the owner or operator
of an uninsured or underinsured motor vehicle because
of bodily injury sustained by the insured caused by an
accident involving the uninsured or underinsured motor
vehicle. . . .’’
Although neither § 38a-336 (a) (1) (A) nor the regula-
tions shed additional light on the meaning of ‘‘bodily
injury’’ in the statute, our Supreme Court has had occa-
sion to consider the ordinary use of the term ‘‘bodily.’’
In Moore v. Continental Casualty Co., 252 Conn. 405,
746 A.2d 1252 (2000), our Supreme Court concluded
that an allegation of emotional distress arising out of
economic loss did not trigger an insurer’s duty to defend
under a homeowners insurance policy providing cover-
age for ‘‘[b]odily [i]njury,’’ which was defined in the
policy to mean ‘‘bodily harm, sickness or disease
. . . .’’ (Internal quotation marks omitted.) Id., 410. One
ground on which the court relied in reaching that con-
clusion was that ‘‘the word bodily as ordinarily used
in the English language strongly suggests something
physical and corporeal, as opposed to something purely
emotional. Webster’s Third New International Diction-
ary confirms this notion, and associates the term bodily
with the physical aspects of the human body, and con-
trasts it with the nonphysical aspects of the human
experience such as the mental and spiritual.12 In the
insurance policy, the word bodily is used as an adjective
to modify the terms injury, harm, sickness and disease.
Including purely emotional harm arising out of eco-
nomic loss as a form of bodily injury would be tanta-
mount to defining the term bodily injury with an ant-
onym. At the very least, such a construction would
render the term bodily superfluous as an adjective modi-
fying the term injury. It is fair to infer that the use
of the term bodily was employed in the policy both
accurately and purposefully.’’ (Footnote in original.)
Id., 410–11.
We find the application in Moore of the ordinary
meaning of ‘‘bodily’’ to be persuasive in our construc-
tion of § 38a-336 (a) (1) (A). We interpret ‘‘bodily’’ in
§ 38a-336 (a) (1) (A) to concern ‘‘something physical
and corporeal, as opposed to something purely emo-
tional.’’ Moore v. Continental Casualty Co., supra, 252
Conn. 410. Because ‘‘bodily’’ is used as an adjective to
modify ‘‘injury,’’ a ‘‘bodily injury’’ under the statute must
necessarily be physical in nature. Under this interpreta-
tion, PTSD, in and of itself as a purely emotional injury,
cannot be construed as a ‘‘bodily injury’’ within the
purview of the statute.
The plaintiffs assert that the PTSD that they purport-
edly developed was accompanied by physical manifes-
tations, such as nightmares and difficulty sleeping,
thereby bringing their PTSD claims within the realm of
§ 38a-336 (a) (1) (A). Our application of Moore, how-
ever, forecloses this contention. In Moore, in rejecting
the plaintiff’s argument that emotional distress stem-
ming from economic loss fell within the definition of
‘‘[b]odily [i]njury’’ in the homeowners insurance policy,
our Supreme Court observed that an ‘‘overwhelming
majority of jurisdictions’’ had concluded that, as a mat-
ter of law, the term ‘‘bodily injury’’ in a liability insur-
ance policy ‘‘does not include emotional distress unac-
companied by physical harm.’’ (Emphasis added;
internal quotation marks omitted.) Moore v. Continen-
tal Casualty Co., supra, 252 Conn. 411–12. Notably, the
court did not go on to state that emotional distress
accompanied by physical symptoms of such distress
would constitute a ‘‘bodily injury’’ under such policies.
Id., 412–15. In fact, the court expressly disagreed with
the rationale of Voorhees v. Preferred Mutual Ins. Co.,
128 N.J. 165, 607 A.2d 1255 (1992), in which the Supreme
Court of New Jersey concluded that the term ‘‘ ‘bodily
injury’ ’’ in a homeowners insurance policy, defined in
the policy to mean ‘‘ ‘bodily harm, sickness or disease,’ ’’
’’encompasses emotional injuries accompanied by phys-
ical manifestations,’’ such as nausea, stomach pains,
and headaches. Id., 175, 179; Moore v. Continental
Casualty Co., supra, 413. Our Supreme Court determined
that Voorhees, and decisions by other courts having
reached similar conclusions, ‘‘find ambiguity where
there is none, and are contrary to the plain meaning of
the language of the insurance policy and the reasonable
expectations of the parties to the policy.’’ Moore v.
Continental Casualty Co., supra, 414.
Moreover, in rejecting an argument by the plaintiff
premised on the proposition that ‘‘modern medical sci-
ence teaches that emotional distress is accompanied
by some physical manifestations’’; id.; our Supreme
Court in Moore stated: ‘‘It is undoubtedly true that emo-
tional distress ordinarily might be accompanied by
some physical manifestations, such as an altered heart
rate and altered blood pressure, and perhaps other such
manifestations as changes in the size of the pupils,
and sleeplessness and headaches. That does not mean,
however, that ‘bodily harm, sickness or disease,’ as used
in the insurance policy in this case, necessarily includes
emotional distress caused by economic loss. The ques-
tion in this case is the legal meaning of ‘‘‘[b]odily
[i]njury’’’ as defined in the policy. It is not the medical
or scientific question of the degree to which the mind
and the body affect each other.’’ Id., 415; see also Taylor
v. Mucci, 288 Conn. 379, 387, 952 A.2d 776 (2008) (noting
that our Supreme Court in Moore ‘‘rejected the plaintiff’s
claim that emotional distress fell within the policy’s
definition of ‘bodily harm’ because it was accompanied
by physical manifestations’’).
As we determined earlier in this opinion, a ‘‘bodily
injury’’ under § 38a-336 (a) (1) (A) must be physical in
nature. Guided by our Supreme Court’s rationale in
Moore, we are not convinced that the PTSD purportedly
developed by the plaintiffs was transformed into a
‘‘bodily injury’’ under the statute by virtue of the physi-
cal manifestations accompanying it.
In their appellate briefs, the plaintiffs also analyze
the language immediately preceding ‘‘bodily injury’’ in
§ 38a-336 (a) (1) (A), providing that uninsured and
underinsured motorist coverage is to be provided in
each automobile liability insurance policy ‘‘for the pro-
tection of persons insured thereunder who are legally
entitled to recover damages because of bodily injury
. . . .’’ (Emphasis added.) General Statutes § 38a-336
(a) (1) (A). We recognize that ‘‘[i]t is a basic tenet of
statutory construction that the legislature [does] not
intend to enact meaningless provisions. . . . [I]n con-
struing statutes, we presume that there is a purpose
behind every sentence, clause, or phrase used in an act
and that no part of a statute is superfluous. . . .
Because [e]very word and phrase [of a statute] is pre-
sumed to have meaning . . . [a statute] must be con-
strued, if possible, such that no clause, sentence or
word shall be superfluous, void or insignificant.’’ (Inter-
nal quotation marks omitted.) Towing & Recovery Pro-
fessionals of Connecticut, Inc. v. Dept. of Motor Vehi-
cles, 205 Conn. App. 368, 373–74, 257 A.3d 978 (2021).
Read in its entirety, we perceive no reasonable con-
struction of the language in § 38a-336 (a) (1) (A) that
alters our conclusion that the plaintiffs’ PTSD claims
are not compensable under the statute. Cf. Connecticut
Ins. Guaranty Assn. v. Fontaine, 278 Conn. 779, 786–88,
900 A.2d 18 (2006) (concluding that phrase ‘‘ ‘because of
bodily injury’ ’’ in professional liability insurance policy
was ambiguous with respect to whether coverage
extended to defendant’s loss of consortium claim predi-
cated on husband’s bodily injury).
As an aside, we observe that, arguably, the plaintiffs’
alleged PTSD could be deemed to be compensable
under § 38a-336 (a) (1) (A) if the PTSD stemmed directly
from the physical injuries that the plaintiffs sustained
from the accident, which unequivocally constitute
‘‘bodily injur[ies]’’ under the statute. As the trial court
found, however, ‘‘the plaintiffs’ PTSD claims are not a
result of their personal injuries. Rather, they are prem-
ised on having gone through a life-threatening accident
and having to reexperience similar work-related scenar-
ios on a regular basis.’’ We do not construe the plaintiffs’
claims on appeal as challenging that finding or, in fact,
to be asserting that their alleged PTSD resulted from
their physical injuries.
In sum, we conclude that the plaintiffs’ PTSD claims
are not compensable under § 38a-336, and, therefore,
the court did not err in declining to award the plaintiffs
PTSD-related damages.
B
We next address the plaintiffs’ claim that the court
improperly reduced their damages by the sums of the
workers’ compensation benefits that they had received.
The plaintiffs contend that the court incorrectly con-
cluded that, pursuant to § 38a-334-6 (d) (1) (B) of the
Regulations of Connecticut State Agencies, the state
properly had elected to reduce the limits of its unin-
sured/underinsured motorist coverage by the amount
of workers’ compensation benefits paid to the plaintiffs,
notwithstanding that the state, although maintaining a
written document reflecting its election, failed to pro-
vide notice of its election to its employees, including
the plaintiffs. We reject the plaintiffs’ claim of error.13
The following additional facts and procedural history
are relevant to our resolution of this claim. Prior to the
March 6, 2019 hearing, the parties stipulated that (1)
Menard had been paid $130,223.63 in workers’ compen-
sation benefits, $3583.33 of which had been repaid on
a workers’ compensation lien, and (2) Connolly had
been paid $134,033 in workers’ compensation benefits,
$3583 of which had been repaid on a workers’ compen-
sation lien.
In a separate joint stipulation, filed on February 26,
2019, the parties further stipulated that, at the time of
the accident on September 1, 2012, the state maintained
a memorandum, dated January 10, 2012, described by
the parties as the state’s ‘‘statement and summary of
its auto[mobile] liability insurance coverage, including
its self-insured coverage, for the fleet of [s]tate owned
vehicles, as adopted by the State of Connecticut Insur-
ance and Risk Management Board for the policy year
[December 31, 2011 through December 31, 2012]’’
(memo). The memo, a copy of which was appended to
the stipulation, provided in relevant part that ‘‘[i]t is
the intent of the [state] in designing and funding its
self-insurance program to avail itself of all rights and
benefits conferred to insurers under . . . [§] 38a-336,
the applicable Regulations of Connecticut State Agen-
cies, including § 38a-334-6, and the case law interpreting
those statutes and regulations. The [s]tate specifically
reserves the right to limit its liability pursuant to . . .
[§] 38a-334-6 (d) [of the regulations] by reducing the
limits of its [uninsured/underinsured motorist] cover-
age by all sums . . . paid or payable under any work-
ers’ compensation law . . . .’’ The parties also stipu-
lated that the memo ‘‘is a public record, created by
the [state] Insurance and Risk Management Board and
maintained in its insurance/risk management files and
created in the ordinary course of business,’’ that the
state ‘‘does not distribute [the memo] to the [s]tate
employees who may operate [s]tate owned vehicles,
and that the [s]tate does not distribute [the memo] to
the employees’ union or union representatives.’’
In their joint briefs filed in connection with the March
6, 2019 hearing, the plaintiffs argued that the state had
not notified its employees, including the plaintiffs, of
its election under § 38a-334-6 (d) (1) (B) of the regula-
tions to reduce its underinsured motorist coverage lim-
its by workers’ compensation benefits paid or payable
to claimants. The plaintiffs posited that, without provid-
ing such notice, the state could not avail itself of the
permissive offset for workers’ compensation benefits
authorized under § 38-334-6 (d) (1) (B) of the regula-
tions. In its respective brief, the state argued in relevant
part that it maintained the memo, which documented
its election of permissive offsets pursuant to § 38-334-
6 (d) (1) (B) of the regulations, in accordance with the
requirements of Piersa v. Phoenix Ins. Co., 273 Conn.
519, 871 A.2d 992 (2005), and that it had no legal obliga-
tion to provide notice of said election to the plaintiffs.
In concluding that a reduction of the plaintiffs’ damages
to account for the workers’ compensation benefits was
appropriate, the court determined that (1) the memo
reflected the state’s election of permissive offsets under
§ 38a-334-6 (d) of the regulations, (2) § 38a-334-6 of the
regulations does not mandate that a self-insurer must
provide notice to claimants of its adoption of permissive
regulatory offsets, and (3) no legal authority had been
cited requiring the state to distribute the memo to its
employees or their union representatives, which, the
court observed, was a public record maintained in the
state’s files, for notification purposes.
The plaintiffs challenge the court’s conclusion that
the state was entitled, under § 38a-334-6 (d) (1) (B)
of the regulations, to offset its liability for uninsured/
underinsured motorist benefits by the amount of the
workers’ compensation benefits paid to the plaintiffs
notwithstanding that the state had failed to provide
notice of its election of that permissive regulatory off-
set. The crux of the plaintiffs’ claim is that the state,
which is a self-insurer for its underinsured motorist
coverage, should not be subject to less stringent require-
ments than a commercial insurer, which is obligated to
include its election of permissive offsets to its underin-
sured motorist coverage in a written policy provided
to its insured. The state argues that, although, as a self-
insurer, it must maintain a preaccident writing
reflecting its election of permissive regulatory offsets
as mandated by Piersa v. Phoenix Ins. Co., supra, 273
Conn. 519, it has no legal obligation to provide its
employees with notice of said election. We agree with
the state.
Our resolution of the plaintiffs’ claim requires us to
consider whether the statutory and regulatory scheme
governing underinsured motorist coverage in Connecti-
cut imposes a requirement on self-insurers to notify
claimants of the self-insurers’ election of permissive
offsets under § 38a-334-6 (d) of the regulations. ‘‘The
interpretation of statutes and regulations is a question
of law over which our review is plenary.’’ MSW Associ-
ates, LLC v. Planning & Zoning Dept., 202 Conn. App.
707, 726, 246 A.3d 1064, cert. denied, 336 Conn. 946,
251 A.3d 77 (2021).
Section 38a-334 (a) provides in relevant part: ‘‘The
Insurance Commissioner shall adopt regulations with
respect to minimum provisions to be included in auto-
mobile liability insurance policies issued after the effec-
tive date of such regulations . . . .’’ Section 38a-336 (a)
(1) (A) provides: ‘‘Each automobile liability insurance
policy shall provide insurance, herein called uninsured
and underinsured motorist coverage, in accordance
with the regulations adopted pursuant to section 38a-
334, with limits for bodily injury or death not less than
those specified in subsection (a) of section 14-112, for
the protection of persons insured thereunder who are
legally entitled to recover damages because of bodily
injury, including death resulting therefrom, from own-
ers or operators of uninsured motor vehicles and under-
insured motor vehicles and insured motor vehicles, the
insurer of which becomes insolvent prior to payment
of such damages.’’
Section 38a-334-6 (a) of the Regulations of Connecti-
cut State Agencies, promulgated by the insurance com-
missioner pursuant to § 38a-334 (a), provides in relevant
part: ‘‘The insurer shall undertake to pay on behalf of
the insured all sums which the insured shall be legally
entitled to recover as damages from the owner or opera-
tor of an uninsured or underinsured motor vehicle
because of bodily injury sustained by the insured caused
by an accident involving the uninsured or underinsured
motor vehicle. . . .’’ Subsection (d) (1) of § 38a-334-6
of the regulations provides in relevant part: ‘‘The limit of
the insurer’s liability may not be less than the applicable
limits for bodily injury liability specified in subsection
(a) of section 14-112 of the general statutes, except that
the policy may provide for the reduction of limits to
the extent that damages have been . . . (B) paid or are
payable under any workers’ compensation law . . . .’’
Section 38a-334-6 (d) (1) of the regulations contem-
plates the existence of a ‘‘policy’’ reflecting an insurer’s
election of permissive offsets to its underinsured motor-
ist coverage. ‘‘ ‘Policy’ ’’ is defined by statute as ‘‘any
document, including attached endorsements and riders,
purporting to be an enforceable contract, which memo-
rializes in writing some or all of the terms of an insur-
ance contract.’’ General Statutes § 38a-1 (17). As our
Supreme Court recognized in Piersa v. Phoenix Ins.
Co., supra, 273 Conn. 519, ‘‘[t]his definition invokes
the traditionally understood insurance policy, with the
characteristics of an enforceable written contract
between insurer and insured, memorializing the terms
of that contract. That definition does not fit comfortably
within a self-insurance context because in such a con-
text the insurer and insured are one and the same, and
there is no enforceable contract between them.’’ Id.,
527. Thus, as the court determined in Piersa, a self-
insurer, such as the state in this case, must satisfy
unique conditions in order to take advantage of the
permissive offsets authorized by § 38a-334-6 (d) of the
regulations. Id.
In Piersa, a police officer brought an action against
his self-insured municipal employer seeking uninsured
motorist benefits. Piersa v. Phoenix Ins. Co., 82 Conn.
App. 752, 753–54, 848 A.2d 485 (2004), rev’d, 273 Conn.
519, 871 A.2d 992 (2005). The municipality moved for
summary judgment, inter alia, on the ground that the
police officer had received workers’ compensation ben-
efits in excess of its uninsured motorist coverage. Id.,
754–55. In objecting to the motion for summary judg-
ment, the police officer argued that the municipality
could not limit its coverage by the amount of workers’
compensation benefits that he received because it
‘‘failed to exercise its permissive right to do so by means
of a writing.’’ Id., 755. The trial court rendered summary
judgment for the municipality, which this court
affirmed. Id., 755, 768.
After granting certiorari, our Supreme Court reversed
this court’s judgment, construing § 38a-334-6 (d) (1) of
the regulations ‘‘to require a municipal self-insurer that
wishes to impose permitted limits on its obligations as
such to do so by a written document that appropriately
provides for reduction of limits.’’ Piersa v. Phoenix Ins.
Co., supra, 273 Conn. 527. In construing § 38a-334-6 of
the regulations, the court determined that the regulation
‘‘is not . . . a notice provision; it is a provision that
specifies the basic requirement of how an insurer—
self or commercial—may limit its liability.’’ Id., 539.
Additionally, in describing the parameters of the ‘‘writ-
ten document’’ alluded to, the court ‘‘emphasize[d] that
there is no particular form that a self-insured entity
must use in order to take advantage of the permitted
reductions in limits. The required written document
may be part of its written notice to the [insurance]
commissioner of its election to be self-insured, pursuant
to [General Statutes] § 38a-371 (c)14 . . . . Or . . . it
may be as part of a written document that the self-
insured entity maintains in its files. Nor is it necessary
for the document to repeat verbatim the language of
the regulation that the [self-insurer] intends to adopt
as limits on its coverage. . . . [T]he [self-insurer] could
adopt those limits by appropriate language indicating
incorporation by reference. The purpose of the docu-
ment is to require the self-insured entity to fulfill its
obligation as insurer by providing a kind of rough equiv-
alence to the obligation of a commercial insurer to limit
its coverage by appropriate language in its policy of
insurance. Any document that reasonably fulfills that
purpose will suffice.’’ (Footnote added.) Id., 531.
In a subsequent decision, our Supreme Court further
expounded on Piersa. In Garcia v. Bridgeport, 306
Conn. 340, 51 A.3d 1089 (2012), the court considered
the issue of whether, without a preaccident writing
requesting lesser coverage limits pursuant to § 38a-336
(a) (2),15 a self-insured municipality was deemed to pro-
vide unlimited underinsured motorist coverage. Id., 343.
The court held that ‘‘a self-insurer is deemed to provide
the minimum statutory underinsured motorist cover-
age’’ and, thereby, ‘‘[a] self-insurer need not prove the
existence of a document requesting the minimum statu-
tory coverage limits.’’ Id., 371. In so holding, the court
distinguished Piersa, observing that the matter before
it concerned § 38a-336 (a) (2), ‘‘a statutory notice provi-
sion requiring an insurer to obtain the informed consent
of the insured’’; id., 353; whereas Piersa addressed
§ 38a-334-6 of the regulations, which is ‘‘not such a
notice provision, [but rather] a provision that specifies
the basic requirement of how an insurer—self or com-
mercial—may limit its liability.’’ (Internal quotation
marks omitted.) Id. The court clarified that it was leav-
ing ‘‘undisturbed [its] conclusion in Piersa that, to take
advantage of permissible offsets provided by § 38a-334-
6 (d) of the [regulations], a self-insurer must maintain
a written document, either in its files or with the com-
missioner of insurance.’’ Id., 370.
In a footnote in Garcia, our Supreme Court made
the following additional observations regarding Piersa:
‘‘The [municipal] defendant has not asked us to recon-
sider our holding in Piersa. Therefore, although we
conclude that the reasoning of Piersa cannot be
extended to § 38a-336 (a) (2), we leave for another
day both reconsideration of the distinction we made in
Piersa between that statute and § 38a-334-6 (d) (1) (B)
of the [regulations], and the application of our ‘rough
equivalence’ doctrine for self-insurers to justify a prior
writing requirement. We note that the ‘rough equiva-
lence’ achieved by requiring a self-insurer to elect regu-
latory limits of liability in writing is unlike the other
applications of this doctrine that we examine in this
opinion. Under Piersa, a self-insurer is faced with a
pro forma administrative burden, but there is no notice
to claimants, such as the plaintiff in this case, and no
balancing of cost against benefit by the insured. In the
individual commercial insurance context, the policy
language requirement serves both as a way for insurers
to limit liability and as a way for an insured, as the
ultimate potential claimant for uninsured motorist cov-
erage, to provide consent to the cost and benefit trade-
off implied by the election of offsets.’’ Id., 358 n.15.
Our Supreme Court’s analyses in Piersa and Garcia
are instructive to our resolution of the plaintiffs’ claim.
Our Supreme Court expressly construed § 38a-334-6 of
the regulations not to be a notice provision; rather, the
court determined that the regulation serves the ‘‘sub-
stantive function’’ of ‘‘specif[ying] the basic requirement
of how an insurer—self or commercial—may limit its
liability.’’ (Internal quotation marks omitted.) Garcia v.
Bridgeport, supra, 306 Conn. 361; see also Piersa v.
Phoenix Ins. Co., supra, 273 Conn. 539. In addition, the
court explained that the written document required for
a self-insurer to elect a permissive regulatory offset
‘‘may be part of [the self-insurer’s] written notice to
the [insurance] commissioner of its election to be self-
insured . . . [o]r . . . it may be as part of a written
document that the self-insured entity maintains in its
files.’’ Piersa v. Phoenix Ins. Co., supra, 531; see also
Garcia v. Bridgeport, supra, 370 (‘‘to take advantage
of permissible offsets provided by § 38a-334-6 (d) of
the [regulations], a self-insurer must maintain a written
document, either in its files or with the commissioner
of insurance’’). The court made no mention of self-
insurers providing claimants with copies of such written
documents or otherwise notifying claimants of the elec-
tion of permissive regulatory offsets. In fact, the court
explicitly stated in Garcia that ‘‘[u]nder Piersa, a self-
insurer is faced with a pro forma administrative burden,
but there is no notice to claimants . . . .’’ (Emphasis
added.) Garcia v. Bridgeport, supra, 358 n.15.
Informed by Piersa and Garcia, we conclude that,
as a matter of law, the state was not required to notify
its employees, including the plaintiffs, of its election,
pursuant to § 38a-334-6 (d) (1) (B) of the regulations, to
offset its liability for uninsured/underinsured motorist
coverage by the amount of workers’ compensation ben-
efits paid to the plaintiffs in order to avail itself of that
permissive regulatory offset. Rather, it was sufficient
for the state to maintain the memo, containing said
election, in its files as a public record. Accordingly, the
plaintiffs’ claim fails.
III
Turning to the state’s cross appeal, the state claims
that the trial court committed error in declining to
reduce the plaintiffs’ damages by the sums that they
had recovered pursuant to the dram shop act.16 Specifi-
cally, the state asserts that (1) the court incorrectly
construed American Universal Ins. Co. v. DelGreco,
205 Conn. 178, 530 A.2d 171 (1987), to prohibit the
reduction of the plaintiffs’ damages to account for their
dram shop recoveries, and (2) the court’s failure to
deduct the plaintiffs’ dram shop recoveries from their
damages resulted in the plaintiffs being compensated
twice for the same injuries in contravention of the com-
mon-law prohibition against double recovery. Limiting
our analysis to the portion of the state’s cross appeal
directed to Connolly, we agree.17
The following additional facts and procedural history
are relevant to our resolution of this claim. Prior to
the March 6, 2019 hearing, the parties stipulated that
Connolly had received $83,332 from an establishment
under the dram shop act. In their principal joint brief
filed in connection with the March 6, 2019 hearing, the
plaintiffs argued that DelGreco prohibited the limitation
of an insurer’s underinsured motorist coverage to
account for sums received by the insured under a dram
shop policy. In its respective brief, the state argued in
relevant part that Connolly’s damages should be
reduced by the amount of his dram shop recovery to
prevent him from receiving a double recovery. The state
further argued that DelGreco was inapposite because
the insured in that case was not compensated twice
for the same injury. In declining to subtract Connolly’s
dram shop recovery from his damages, the court con-
cluded that it was bound by the holding in DelGreco
that an insurer’s underinsured motorist coverage could
not be reduced by sums obtained by the insured under
a dram shop policy.
The state contends that the court’s reliance on Del-
Greco was misplaced because, unlike the present case,
the insured in DelGreco did not receive a double recov-
ery. The plaintiffs maintain that DelGreco is dispositive
of the state’s claim. We conclude that DelGreco does
not govern the precise issue before us.
A brief summary of DelGreco is apropos. In DelGreco,
the decedent died from injuries sustained after being
struck by a motor vehicle. American Universal Ins. Co.
v. DelGreco, supra, 205 Conn. 179. The parties stipulated
that the decedent’s estate sustained damages in excess
of $100,000. Id., 180. Following the accident, the estate
was paid (1) the $20,000 limit under the tortfeasor’s
motor vehicle liability policy and (2) the $20,000 limit
under the dram shop policy of an establishment against
which the estate had pursued a claim under the dram
shop act. Id., 179–80. Thereafter, the estate submitted
a claim for underinsured motorist benefits to the dece-
dent’s automobile insurer, which had issued a policy
to the decedent providing underinsured motorist cover-
age in the amount of $40,000 per accident and basic
reparation benefits in the amount of $5000. Id., 180.
The parties stipulated that the insurer was entitled to
a credit for (1) the $20,000 liability insurance payment
under the tortfeasor’s policy and (2) a $2335.80 payment
that the insurer had made in basic reparation benefits,
but the parties disputed whether the insurer was enti-
tled to a setoff for the $20,000 dram shop payment. Id.The dispute was submitted to a panel of arbitrators,
which entered an award in the estate’s favor on the
ground that, pursuant to the state statutory and regula-
tory scheme governing underinsured motorists, the
insurer was not entitled to a setoff for the dram shop
payment. Id., 181–83. The Superior Court subsequently
confirmed the arbitration award. Id., 183. The insurer
appealed to this court, and our Supreme Court trans-
ferred the appeal to itself. Id., 183–84.
On appeal, our Supreme Court affirmed the Superior
Court’s judgment. Id., 199. The court first considered
the language of General Statutes (Rev. to 1983) § 38-
175c (b) (1), as amended by Public Acts 1983, No. 83-
267, § 2, and No. 83-461 (now § 38a-336 (b)), which
provides in relevant part that ‘‘[a]n insurance company
shall be obligated to make payment to its insured up
to the limits of the policy’s uninsured motorist 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 . . . .’’ (Emphasis added.)
American Universal Ins. Co. v. DelGreco, supra, 205
Conn. 192. The court concluded that dram shop policies
did not constitute ‘‘ ‘bodily injury liability bonds or
insurance policies’ ’’ within the meaning of the statute.
Id., 195–96. The court next considered § 38-175a-6 (d)
(now § 38a-334-6 (d)) of the Regulations of Connecticut
State Agencies, which provides in relevant part that
‘‘[t]he limit of the insurer’s liability may not be less than
the applicable limits for bodily injury liability specified
in subsection (a) of section 14-112 of the general stat-
utes, except that the policy may provide for the reduc-
tion of limits to the extent that damages have been . . .
paid by or on behalf of any person responsible for the
injury . . . .’’ (Emphasis added.) American Universal
Ins. Co. v. DelGreco, supra, 182 n.4, 197–98. The court
concluded that a dram shop was not an entity ‘‘ ‘respon-
sible for the injury’ ’’ under the regulation and that the
regulation did not expressly authorize reductions of
coverage limits for dram shop payments. Id., 198–99.
In sum, the court held that the statute and the regulation
‘‘do not allow an insurer to reduce its liability for under-
insured motorist coverage by an amount of money
received by the insured pursuant to a dram shop policy.’’
Id., 199.
It is apparent that the issue addressed in DelGreco
is distinct from the inquiry presently before us. In Del-
Greco, the court concluded that, under the statutory and
regulatory scheme governing underinsured motorists
in Connecticut, an insurer is not entitled to offset a
dram shop payment against the limit of its underinsured
motorist coverage. Id. The question in the present case,
however, is whether a claimant’s damages can be
reduced by the sum of a dram shop payment in order
to prevent a double recovery as proscribed by common
law. DelGreco did not contemplate this discrete issue.
Indeed, the court in DelGreco acknowledged that ‘‘the
sums due the decedent’s estate, even if all were to be
collected, [were] far short of the damages suffered,’’
thereby foreclosing the possibility of a double recovery
in that case. Id., 198. Thus, the trial court improperly
relied on DelGreco to determine that the dram shop
payment received by Connolly was not deductible from
his damages.
Having concluded that DelGreco is inapposite, we
turn to the state’s contention that, without a reduction
of Connolly’s damages to account for his dram shop
recovery, Connolly was compensated twice for the
same injury in violation of the common-law rule pre-
cluding double recovery. We agree.18
Damages recovered under the dram shop act are com-
pensatory. See Gionfriddo v. Gartenhaus Cafe, 15
Conn. App. 392, 399–400, 546 A.2d 284 (1988), aff’d, 211
Conn. 67, 557 A.2d 540 (1989). Thus, the state’s claim
requires us to ‘‘confront the legal question of whether
a plaintiff is entitled to recover compensatory damages
twice for the same conduct. Because such a determina-
tion involves a question of law, our review is plenary.’’
Rowe v. Goulet, 89 Conn. App. 836, 848, 875 A.2d 564(2005).
‘‘[T]he rule precluding double recovery is a simple
and time-honored maxim that [a] plaintiff may be com-
pensated only once for his just damages for the same
injury. . . . Connecticut courts consistently have
upheld and endorsed the principle that a litigant may
recover just damages for the same loss only once. The
social policy behind this concept is that it is a waste
of society’s economic resources to do more than com-
pensate an injured party for a loss and, therefore, that
the judicial machinery should not be engaged in shifting
a loss in order to create such an economic waste.’’
(Internal quotation marks omitted.) Mahon v. B.V. Uni-
tron Mfg., Inc., 284 Conn. 645, 663, 935 A.2d 1004 (2007).
The legal principle prohibiting double recovery is
ingrained in this state’s underinsured motorist laws.
Section 38a-336 (b) provides in relevant part that ‘‘[a]n
insurance company shall be obligated to make payment
to its insured up to the limits of the policy’s uninsured
and underinsured motorist coverage after the limits of
liability under all bodily injury liability bonds or insur-
ance policies applicable at the time of the accident have
been exhausted by payment of judgments or settle-
ments, but in no event shall the total amount of recovery
from all policies . . . exceed the limits of the insured’s
uninsured and underinsured motorist coverage. . . .’’
(Emphasis added.) Our Supreme Court has described
§ 38a-336 (b) as ‘‘emphasiz[ing]’’ the ‘‘policy objective
of adhering to the time-honored rule that an injured
party is entitled to full recovery only once for the harm
suffered.’’ (Internal quotation marks omitted.) Vitti v.
Allstate Ins. Co., 245 Conn. 169, 186 and n.17, 713 A.2d
1269 (1998).
As our Supreme Court has further explained, ‘‘[i]t
has often been stated that [t]he public policy established
by [§ 38a-336] is that every insured is entitled to recover
for the damages he or she would have been able to
recover if the [under]insured motorist had maintained
[an adequate] policy of liability insurance. . . . How-
ever, [t]he statute does not require that [under]insured
motorist coverage be made available when the insured
has been otherwise protected . . . . Nor does the stat-
ute provide that the [under]insured motorist coverage
shall stand as an independent source of recovery for
the insured, or that the coverage limits shall not be
reduced under appropriate circumstances. The statute
merely requires that a certain minimum level of protec-
tion be provided for those insured under automobile
liability insurance policies . . . .’’ (Citations omitted;
internal quotation marks omitted.) Guarino v. Allstate
Property & Casualty Ins. Co., 315 Conn. 249, 255–56,
105 A.3d 878 (2015). Moreover, ‘‘General Statutes § 38a-
335 (c), which sets forth minimum policy provisions
for automobile liability policies, provides in part that
‘[i]n no event shall any person be entitled to receive
duplicate payments for the same element of loss.’ ’’
Fahey v. Safeco Ins. Co. of America, 49 Conn. App. 306,
310, 714 A.2d 686 (1998).
Our Supreme Court’s decision in Gionfriddo v. Gar-
tenhaus Cafe, 211 Conn. 67, 557 A.2d 540 (1989), pro-
vides additional guidance. In Gionfriddo, the decedent
died from injuries sustained in a collision with a motor
vehicle operated by an intoxicated driver. Id., 69. The
decedent’s estate recovered $1,187,763 in compensa-
tory, exemplary, and treble damages in an action filed
against the tortfeasor and the lessor of the tortfeasor’s
motor vehicle. Id. Thereafter, the estate commenced
an action against the establishment where the tortfeasor
had imbibed alcohol prior to the collision, asserting one
claim pursuant to the dram shop act and another claim
of wanton and reckless misconduct.19 Id., 69–70. The
establishment moved for summary judgment on those
claims, contending that satisfaction of the judgment in
the estate’s preceding action against the tortfeasor and
the lessor for the same injuries precluded the estate’s
recovery in the current action. Id., 70. The trial court
denied the motion for summary judgment. Id. Following
an ensuing jury trial, the jury returned a verdict for the
establishment, and the court rendered judgment in its
favor. Id. This court affirmed the judgment, although it
determined that the trial court had improperly denied
the establishment’s motion for summary judgment. Id.After granting certiorari, our Supreme Court affirmed
this court’s decision, ‘‘dispos[ing] of th[e] case by paying
heed to the simple and time-honored maxim that [a]
plaintiff may be compensated only once for his just
damages for the same injury.’’ (Internal quotation marks
omitted.) Id., 71. In so ruling, the court observed that
(1) the damages claimed by the estate in the dram shop
action were identical to those recovered in the preced-
ing action, and (2) the estate never claimed that the
verdict for compensatory damages in the preceding
action was insufficient. Id., 75–76.
Here, the parties stipulated that, among other sums
received by Connolly ‘‘on account of the personal injur-
ies sustained in the motor vehicle collision of Septem-
ber 1, 2012,’’ Connolly recovered $83,332 from an estab-
lishment under the dram shop act. Without a reduction
in his damages accounting for his dram shop recovery,
Connolly was compensated twice for the same injury
in contravention of the common-law rule precluding
double recovery. See also General Statutes § 38a-335
(c).
In sum, the court committed error in declining to
reduce Connolly’s damages by the sum of his dram shop
recovery. Taking into account the $83,332 dram shop
payment that Connolly received, the court should have
further reduced Connolly’s damages from $32,905.67 to
zero dollars.
IV
At this juncture, we observe that, as a result of our
conclusions in parts II and III of this opinion, neither
plaintiff is entitled to recover damages against the state.
Under these circumstances, on remand, judgments
must be rendered in favor of the state in the plaintiffs’
respective cases. See Fileccia v. Nationwide Prop-
erty & Casualty Ins. Co., 92 Conn. App. 481, 496, 886
A.2d 461 (2005) (directing that, on remand, if sum recov-
ered by insured from tortfeasor exceeded insured’s
damages, then trial court should reduce insured’s dam-
ages to zero and render judgment in favor of insurer),
cert. denied, 277 Conn. 907, 894 A.2d 987 (2006); Hunte
v. Amica Mutual Ins. Co., 68 Conn. App. 534, 536, 539,
792 A.2d 132 (2002) (concluding that trial court properly
rendered judgment for insurer when jury returned ver-
dict for insured in amount less than total of insured’s
recovery from tortfeasor and insurer’s payment of basic
reparation benefits); Fahey v. Safeco Ins. Co. of
America, supra, 49 Conn. App. 312 (concluding that
trial court properly rendered judgment for insurer when
jury returned verdict for insured in amount less than
insured’s recovery from tortfeasor). Accordingly, with
respect to Menard, in favor of whom the court rendered
judgment notwithstanding that his damages had been
reduced to zero dollars, we must reverse the judgment
and remand the matter with direction to render judg-
ment for the state. Similarly, with respect to Connolly,
we must reverse the judgment and remand the matter
with direction to render judgment for the state.
The original joint appeal is dismissed for lack of final
judgments; as to the amended joint appeal and the cross
appeal, the judgments as to Scott Menard and Darren
Connolly are reversed and the cases are remanded with
direction to render judgments in favor of the state con-
sistent with this opinion, and the judgment as to Robert
Zdrojeski is affirmed.
In this opinion the other judges concurred.
1
This joint appeal, as later amended, was filed by Menard, Connolly, and
Zdrojeski, but Zdrojeski subsequently withdrew his portion of the joint
appeal and is not participating in the joint appeal or the cross appeal. For
the purpose of clarity, we refer in this opinion to Menard, Connolly, and
Zdrojeski individually by their surnames, and we refer to Menard and Con-
nolly collectively as the plaintiffs.
2
As we explain in footnote 17 of this opinion, although the state’s cross
appeal against Zdrojeski remains pending notwithstanding Zdrojeski’s with-
drawal of his portion of the joint appeal, as amended, the state has abandoned
its claim on cross appeal against Zdrojeski.
3
Although § 38a-336 has been amended by the legislature since the events
underlying the present appeal; see Public Acts 2014, No. 14-20, § 1; Public
Acts 2014, No. 14-71, § 1; Public Acts 2015, No. 15-118, § 69; those amend-
ments have no bearing on the merits of this appeal. In the interest of
simplicity, we refer to the current revision of the statute.
4
The record before us does not reflect the policy limits of the nonparty
tortfeasor, nor does it reflect the name of the dram shop.
5
The parties further stipulated that, prior to trial, they had agreed that
‘‘the full amount of the [plaintiffs’] medical bills would be allowed into
evidence without objection, but that any recovery for said medical bills
would be limited to the actual amounts paid, with any adjustments to be
handled as a [postjudgment] matter.’’ To that end, the parties stipulated that
the difference between Menard’s medical expenses and the amount paid in
satisfaction thereof by the state’s workers’ compensation insurance carrier
was approximately $33,500, and that the difference between Connolly’s
medical expenses and the amount paid in satisfaction thereof was approxi-
mately $12,633.
6
The court and the parties referred to the March 6, 2019 hearing as a
collateral source hearing, a transcript of which was not ordered by any
party in conjunction with this joint appeal, as amended, or this cross appeal.
As reflected in its decision issued on May 16, 2019, however, the court
reduced the plaintiffs’ damages by noncollateral sources. For the sake of
clarity, we avoid referring to the March 6, 2019 hearing as a collateral
source hearing.
7
The record before us does not indicate that the plaintiffs objected to
the court reducing their damages by the $10,750 payment that each plaintiff
received from the nonparty tortfeasor or, in Menard’s case, by the $33,000
personal underinsured motorist coverage payment that he received. The
plaintiffs do not claim on appeal that the court committed error in deducting
those amounts from their damages.
8
Zdrojeski filed a separate action against the state seeking underinsured
motorist benefits, which was consolidated with the plaintiffs’ actions for
trial. The court rendered judgment in favor of Zdrojeski in the amount of
$29,963.03. The judgment rendered for Zdrojeski is not at issue in the joint
appeal, as amended. See footnote 1 of this opinion. As for the state’s cross
appeal, the judgment rendered for Zdrojeski is at issue, but the state has
abandoned its claim as to Zdrojeski. See footnote 17 of this opinion.
9
The plaintiffs also assert that the court erred in discrediting the opinion
of their expert witness who diagnosed them with PTSD. In light of our
determination that the court properly concluded that the plaintiffs’ PTSD
claims are not compensable under § 38a-336, we need not reach the merits
of this claim of error.
10
‘‘General Statutes § 1-2z provides: ‘The 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.’ ’’ Reserve Realty, LLC v.
Windemere Reserve, LLC, supra, 205 Conn. App. 325 n.28.
11
General Statutes § 38a-334 (a) provides in relevant part: ‘‘The Insurance
Commissioner shall adopt regulations with respect to minimum provisions
to be included in automobile liability insurance policies issued after the
effective date of such regulations . . . .’’
12
‘‘Webster’s Third New International Dictionary defines ‘bodily’ as ‘having
a body or a material form: PHYSICAL, CORPOREAL . . . of or relating to
the body . . . concerning the body . . . BODILY contrast with mental or
spiritual . . . .’ ’’ (Emphasis in original.) Moore v. Continental Casualty
Co., supra, 252 Conn. 411 n.6.
13
On the basis of their respective appellate briefs, the parties appear to
presume that, as a precondition of the trial court reducing the plaintiffs’
damages by the sums of the workers’ compensation benefits that the plain-
tiffs received, the state must have made a proper offset election pursuant
to § 38a-334-6 (d) (1) (B) of the Regulations of Connecticut State Agencies.
The parties do not address whether § 38a-334-6 (d) (1) (B) concerns only
reductions of an insurer’s coverage limits, as opposed to the damages
recoverable by the insured, and the implications thereof. Because we reject
the merits of the plaintiffs’ claim that the state failed to make a proper
offset election under § 38a-334-6 (d) (1) (B) of the regulations, we decline
to discuss further the scope of the regulation.
14
General Statutes § 38a-371 (c) provides: ‘‘Subject to approval of the
Insurance Commissioner the security required by this section, may be pro-
vided by self-insurance by filing with the commissioner in satisfactory form:
(1) A continuing undertaking by the owner or other appropriate person to
perform all obligations imposed by this section; (2) evidence that appropriate
provision exists for the prompt and efficient administration of all claims,
benefits, and obligations provided by this section; and (3) evidence that
reliable financial arrangements, deposits or commitments exist providing
assurance for payment of all obligations imposed by this section substantially
equivalent to those afforded by a policy of insurance that would comply
with this section. A person who provides security under this subsection is
a self-insurer. A municipality may provide the security required under this
section by filing with the commissioner a notice that it is a self-insurer.’’
15
General Statutes § 38a-336 (a) (2) provides in relevant part: ‘‘Notwith-
standing any provision of this section, each automobile liability insurance
policy issued or renewed on and after January 1, 1994, shall provide unin-
sured and underinsured motorist coverage with limits for bodily injury and
death equal to those purchased to protect against loss resulting from the
liability imposed by law unless any named insured requests in writing a
lesser amount, but not less than the limits specified in subsection (a) of
section 14-112. Such written request shall apply to all subsequent renewals
of coverage and to all policies or endorsements that extend, change, super-
sede or replace an existing policy issued to the named insured, unless
changed in writing by any named insured. No such written request for a
lesser amount shall be effective unless any named insured has signed an
informed consent form . . . .’’
16
General Statutes § 30-102 provides in relevant part: ‘‘If any person, by
such person or such person’s agent, sells any alcoholic liquor to an intoxi-
cated person, and such purchaser, in consequence of such intoxication,
thereafter injures the person or property of another, such seller shall pay
just damages to the person injured, up to the amount of two hundred fifty
thousand dollars, or to persons injured in consequence of such intoxication
up to an aggregate amount of two hundred fifty thousand dollars, to be
recovered in an action under this section . . . .’’
17
In part II B of this opinion, we conclude that the court properly reduced
the plaintiffs’ damages by the sums of workers’ compensation benefits that
the plaintiffs had received. Taking into account the workers’ compensation
benefits, along with the additional sums stipulated to by the parties other
than the dram shop payments, the court reduced Menard’s damages to zero
dollars and Connolly’s damages to $32,905.67. Because Menard’s damages
cannot be further reduced, we consider only whether the court improperly
declined to deduct Connolly’s dram shop recovery from his damages.
Additionally, although Zdrojeski has withdrawn his portion of the joint
appeal, as amended; see footnote 1 of this opinion; the state has not with-
drawn its cross appeal as to Zdrojeski, leaving the cross appeal pending
against him. See Practice Book § 61-8 (‘‘[e]xcept where otherwise provided,
the filing and form of cross appeals, extensions of time for filing them, and
all subsequent proceedings shall be the same as though the cross appeal
were an original appeal’’); Schurman v. Schurman, 188 Conn. 268, 270, 449
A.2d 169 (1982) (‘‘withdrawal of an appeal does not preclude continued
prosecution of a previously filed cross appeal’’). In its appellate briefs,
however, the state has briefed its claim on cross appeal only with respect
to Menard and Connolly. Thus, we deem the state’s claim on cross appeal
as to Zdrojeski to be abandoned, and, on that basis, we affirm the judgment
rendered in favor of Zdrojeski.
18
Our conclusion that DelGreco is inapposite and that Connolly would
obtain an impermissible double recovery without a reduction of his damages
by the sum of his dram shop recovery is in accord with commentary in
‘‘the leading treatise regarding Connecticut’s uninsured [and underinsured]
motorist law . . . .’’ Vitti v. Allstate Ins. Co., 245 Conn. 169, 179 n.9, 713
A.2d 1269 (1998); see J. Berk & M. Jainchill, Connecticut Law of Uninsured
and Underinsured Motorist Coverage (4th Ed. 2010). In the treatise, the
authors observe that, in DelGreco, ‘‘[t]he claimant . . . was not made ‘whole’
and, clearly, no ‘double recovery’ to the estate was present. Although the
limits of coverage were not reduced (because the dram shop was not
deemed to be an ‘automobile tortfeasor’ under the regulation), it would
certainly appear reasonable that the amount of damages, if duplicated,
should be reduced accordingly.’’ (Emphasis in original.) J. Berk & M. Jain-
chill, supra, § 4.9.D, p. 464 n.91; see also id., § 6.2, p. 510 n.11 (‘‘The reduction
of coverage limits and the reduction of damages are distinct issues, turning
on different concepts. The reduction of coverage limits is unique to the
[uninsured/underinsured motorist] context while the reduction of damages
to prevent a double recovery is, it is submitted, a universal concept.’’ (Empha-
sis in original.)); id., 511–12 (observing that, pursuant to DelGreco, moneys
received from nonautomobile tortfeasor will not reduce insurer’s coverage
obligation, but that ‘‘the damage award should be reduced by such payments
to the extent that a ‘double recovery’ is present’’).
19
The estate also asserted negligence and public nuisance claims, but
those claims were stricken and judgment was rendered thereon in favor of
the establishment. Gionfriddo v. Gartenhaus Cafe, supra, 211 Conn. 69.