622 A.2d 609
(11410)Appellate Court of Connecticut
DALY, HEIMAN and FREEDMAN, Js.
The plaintiff in the first case, the defendant in the second case, A, who had been injured in an accident involving an uninsured motorist, sought to confirm an arbitration award rendered in connection with his claim for uninsured motorist benefits under a policy issued to his mother. The defendant in the first case, the plaintiff in the second case, C Co., the insurance guaranty association, sought to vacate that award. The trial court rendered judgment vacating the award on the ground that the evidence did not support the arbitrators’ determination that A was a resident in his mother’s household. On A’s appeal to this court, 1. The trial court improperly vacated the arbitrators’ unanimous finding that A was insured under his mother’s policy; that critical factual determination was supported by substantial evidence. 2. A’s claim that the trial court improperly subjected the entire arbitration award to de novo review, not having been raised in that court, was not reviewable. 3. C Co.’s claim that the trial court’s judgment should be upheld on the alternative ground that the arbitrators should have allowed a continuance until the plaintiff’s workers’ compensation claim was resolved was moot. The trial court was directed on remand to consider the plaintiff’s claim for prejudgment interest and to remand the case for arbitration to determine the amount of workers’ compensation to be set off from the arbitration award.
Argued February 16, 1993
Decision released March 30, 1993
Application, in the first case, to confirm an arbitration award, and application, in the second case, to vacate that award, brought to the Superior Court in the judicial district of New Haven, where the cases were consolidated and tried to the court, DeMayo, J.; judgment denying the application to confirm and granting the application to vacate, from which the plaintiff in the first case, defendant in the second case, appealed
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to this court. Reversed; judgment directed in part; further proceedings.
Ira B. Grudberg, with whom, on the brief, was Alice S. Miskimin, for the appellant (plaintiff in the first case, defendant in the second case).
Philip F. von Kuhn, for the appellee (defendant in the first case, plaintiff in the second case).
HEIMAN, J.
The plaintiff appeals from the trial court’s judgment vacating the arbitrators’ award.[1] On appeal, the plaintiff asserts that the trial court improperly (1) vacated the arbitrators’ unanimous finding that he was insured under his mother’s automobile insurance policy by (a) misapplying the substantial evidence rule and (b) failing to follow Connecticut precedent on what constitutes a family member’s residency in a household, and (2) reviewed de novo the arbitrators’ damage award. The plaintiff also asserts that (3) he is entitled to prejudgment interest from the date of the arbitration award and (4) the trial court properly refused to vacate the arbitrators’ award on the ground of the arbitrators’ misconduct.[2] We reverse the trial court’s judgment.
The following facts are necessary for a resolution of this appeal. On December 23, 1988, while operating his employer’s motor vehicle, the plaintiff was involved in an accident with an uninsured motorist. The accident
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gave rise to a claim for uninsured motorist benefits and a claim for workers’ compensation. The uninsured motorist claim was brought against American Universal Insurance Company (AUIC) and was based on an automobile policy issued to the plaintiff’s mother. AUIC was placed in receivership and Connecticut Insurance Guaranty Association (CIGA) was substituted as the defendant.
Under the terms of the policy and General Statutes § 38a-336 (c), the plaintiff’s claim for uninsured motorist benefits was subject to arbitration before a three member panel. The defendant unsuccessfully moved that the arbitration be continued until the time that the plaintiff had been awarded workers’ compensation benefits for the permanent partial disability that he claimed arose out of the accident.
During the course of the arbitration hearing, the parties presented the following evidence. The plaintiff lived on the third floor of his mother’s house. At the time of the arbitration, the plaintiff was thirty-two years old and had lived on the third floor since the age of sixteen. The plaintiff testified at the hearing that he moved to the third floor because he “got fed up with [his family’s] arguing. [He] had to go somewhere. [He] was out.” There was conflicting testimony as to whether the plaintiff had running water on the third floor or had his own kitchen or bathroom facilities. The plaintiff paid rent to his mother and shared a stairway to gain access to the third floor. He occasionally drove his mother’s car to work when it was too rainy to ride his bicycle.
The parties also stipulated that the plaintiff had received $16,387.32 in medical expenses and $28,736.25 in temporary total benefits, for a total of $45,123.57 from the workers’ compensation carrier. The plaintiff’s attorney stated that the plaintiff’s physician assessed
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his injuries and found that the plaintiff had a 15 percent permanent partial disability of his cervical spine and a 7.5 percent disability of his lumbar spine.[3] The parties stipulated that using the plaintiff’s physician’s assessment and computing an award under the workers’ compensation statutes, 100 percent disability of the neck entitles a claimant to 175 weeks at the prevailing compensation rate and that 100 percent disability of the back entitles a claimant to 520 weeks at the prevailing compensation rate. They further stipulated that the plaintiff’s compensation rate was $422.07. Under these stipulations, the plaintiff’s claim would be $16,460.73 for his back injury and $9232.78 for his neck injury.
On February 14, 1992, the arbitrators unanimously found the issue of liability and coverage in favor of the plaintiff. They also found the following: the claimant sustained permanent injuries and damages as a result of an automobile accident in the course of his employment at United Illuminating; United Illuminating provided $20,000 in uninsured motorist coverage and that that coverage is primary; the available uninsured motorist coverage afforded by CIGA is $299,900; and the defendant is entitled to a credit of $25,123.57, which is the balance of the workers’ compensation credit agreed on by the parties after applying the first $20,000 to the primary coverage. The arbitrators, however, declined to find the amount of any award the workers’ compensation commissioner might make and to credit that amount of workers’ compensation yet to be paid against any amount due to the plaintiff from the defendant.
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The plaintiff moved to confirm and the defendant moved to vacate the award.[4] Upon motion, the trial court consolidated the cases. The court found that the record lacked substantial evidence to support the arbitrators’ conclusion that the plaintiff was a resident of his mother’s household. The trial court vacated the arbitrators’ award.[5] This appeal ensued.
I
The plaintiff asserts that the trial court improperly vacated the arbitrators’ unanimous finding that he was insured under his mother’s automobile insurance policy by misapplying the substantial evidence rule and by failing to follow Connecticut precedent on what constitutes a family member’s residency in a household. We agree.
When reviewing an arbitration panel’s factual findings considering underinsured motorist coverage, our courts’ standard of review is whether the arbitrators’ findings are supported by substantial evidence. Rydingsword v. Liberty Mutual Ins. Co., 224 Conn. 8, 21, 615 A.2d 1032 (1992); Chmielewski, v. Aetna Casualty
Surety Co., 218 Conn. 646, 660-61, 591 A.2d 101 (1991). The test in this context requires that a court determine whether substantial evidence exists in the “record to support the [arbitration panel’s] findings of basic fact and whether the conclusions drawn from those facts are reasonable. Substantial evidence will be found to exist if the . . . record supplies a substantial basis of
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fact from which the court reasonably can infer the fact in issue.” (Citation omitted; internal quotation marks omitted.) Lawrence v. New Hampshire Ins. Co., 29 Conn. App. 484, 490, 616 A.2d 806 (1992), quoting Chmielewski v. Aetna Casualty Surety Co., supra, 656. A reviewing court must defer to the arbitrators’ right to credit testimony in whole, in part, or not at all. See Chmielewski v. Aetna Casualty Surety Co., supra, 661 n. 15. The fact that a possibility exists that two inconsistent conclusions may be drawn from the evidence does not prevent the arbitrators’ finding from being supported by substantial evidence.
To find that the plaintiff was covered by his mother’s policy, the arbitrators needed to find that he was a resident in her household. In defining the terms “resident of the same household”, our Supreme Court quoted Webster’s Third New International Dictionary which defined “household” as: “`[T]hose who dwell under the same roof and compose a family: a domestic establishment; specif: a social unit comprised of those living together in the same dwelling place.'” Griffith v. Security Ins. Co., 167 Conn. 450, 454, 356 A.2d 94
(1975); Middlesex Mutual Assurance Co. v. Walsh, 218 Conn. 681, 686, 590 A.2d 957 (1991). On the basis of this definition, our courts have determined that there are two criteria that must be met for a person to qualify as a “resident of the same household.” Lawrence v. New Hampshire Ins. Co., supra, 492. We determine first whether the evidence in this case was sufficient to establish that the plaintiff had a close, family-type relationship with the members of the D’Addio household. Middlesex Mutual Assurance Co. v. Walsh, supra; Lawrence v. New Hampshire Ins. Co., supra. We consider second whether the facts in this case were sufficient to establish that the plaintiff actually lived in the D’Addio household. Middlesex Mutual Assurance Co. v. Walsh, supra; Lawrence v. New Hampshire Ins. Co., supra.
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The arbitrators’ finding of coverage here was supported by substantial evidence. On the basis of the record before it, the arbitrators could have reasonably found that the plaintiff was a resident in his mother’s household. They reasonably could have found that the fact that the plaintiff shared facilities with his mother, used her automobile, lived in the same physical premises, lived there his entire life, and shared a mailing address were sufficient to establish a close family-type relationship with the inhabitants of that household and that the plaintiff actually lived in the household. The trial court’s role was not to draw inferences from evidence presented to the arbitrators, but rather to discover whether the arbitrators’ findings of fact were reasonable.[6]
Our independent review of the record presented to the trial court persuades us that the critical factual determination, that the plaintiff was a resident of the household, was supported by substantial evidence. See Chmielewski v. Aetna Casualty Surety Co., supra, 660-61.
II
The plaintiff also asserts that the arbitrators’ damage award was final, binding, and not reviewable for errors of law or fact. He contends that in addition to vacating the arbitrators’ award improperly, the trial court, in the event that its judgment was reversed, gratuitously supported CIGA’s claims for entitlement to credits for workers’ compensation payments paid and payable to the claimant. He asserts that in effect the trial court subjected the entire arbitration award to de novo review.
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The plaintiff failed to raise this claim in the trial court.[7] Accordingly, we do not review this claim raised for the first time on appeal. Rydingsword v. Liberty Mutual Ins. Co., supra, 9-10 n. 1; Cahill v. Board of Education, 187 Conn. 94, 99-100, 444 A.2d 907 (1982). “Only in the most exceptional circumstances will this court consider a claim that was not raised in the trial court. . . . Such exceptional circumstances may occur where a new and unforeseen constitutional right has arisen between the time of trial and appeal or where the record supports a claim that a litigant has been deprived of a fundamental constitutional right and a fair trial. . . . An exception may also be made where consideration of the question is in the interest of the public welfare or of justice between the parties.” (Citations omitted.) Cahill v. Board of Education, supra. We conclude that none of these exceptions are applicable in this case and thus we will not review this claim.
III
The plaintiff further asserts that he is entitled to prejudgment interest from the date of the arbitration award, February 14, 1992. Because the trial court vacated the arbitrators’ awards, it did not have the opportunity to adjudicate this claim. On remand, the trial court should address the issue of whether the plaintiff is entitled to prejudgment interest.[8]
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IV
The defendant asserts that the trial court’s judgment vacating the arbitrators’ award should be affirmed on the alternative ground that there was arbitrator misconduct in refusing to grant the defendant’s application for a continuance.[9] This claim was premised on the fact that the arbitrators would not grant a continuance until the workers’ compensation commissioner determined the extent of the plaintiff’s permanent partial disability and the amount of his award, or in the alterative credit the defendant concerning the amount of any award the workers’ compensation commissioner may make. In light of our remand and our Supreme Court’s decision in Rydingsword v. Liberty Mutual Ins. Co., supra, 21, 22 n. 21, this issue is moot.
The judgment is reversed and the case is remanded a to the trial court with direction to render judgment confirming the arbitrators’ finding of coverage, for further proceedings to determine whether the plaintiff is entitled to prejudgment interest and with direction to remand the case for arbitration in accordance with the insurance policy to determine only the amount to be
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deducted from the award to the plaintiff on account of any permanent partial disability compensable under the Workers Compensation Act.
In this opinion the other judges concurred.