Attorney General: The Honorable Robert Leuba, Supreme Court Building, 1999-005 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General Richard Blumenthal

April 23, 1999

The Honorable Robert Leuba
Chief Court Administrator
Supreme Court Building
231 Capitol Ave.
Hartford, CT 06106

Dear Judge Leuba:

This opinion responds to your office's request for opinion concerning the proper application of Public Act 95-175 ("the Act") to operations in the Office of Victim Services.

The Office of Victim Services ("OVS") was established to provide certain services to victims of crime. Conn. Gen. Stat. 54-201 et seq. Among its relevant responsibilities is the authority of OVS to provide compensation or restitution to victims of crime that resulted in personal injury or death. 54-204, 54-205. Prior to the passage of Public Act 95-175, Conn. Gen. Stat. 54-212 provided that when the OVS paid an award of compensation or provided restitution services to an applicant, it was subrogated to the applicant's cause of action against the person or persons responsible for the injury or death that caused the applicant harm. Conn. Gen. Stat. 54-212 (a). OVS was also entitled to reimbursement from the applicant for two-thirds of the compensation paid when the applicant brought an independent action and recovered damages. Conn. Gen. Stat. 54-212 (b).

Public Act. 95-175, 8 amended Conn. Gen. Stat. 54-212 in two ways.1 First, it amended subsection (b) of 54-212 to give OVS a statutory lien on an applicant's recovery, in addition to its preexisting rights to subrogation and reimbursement:

(b) If the applicant brings an action against the person or persons responsible for such injury or death to recover damages arising out of the crime for which an award has been granted, the Office of Victim Services shall have a lien on the applicant's recovery for the amount to which the office is entitled to reimbursement. The applicant shall notify the Office of Victim Services of the filing of such complaint within thirty days of the filing of the complaint in court. Whenever an applicant recovers damages, whether by judgment, settlement or compromise settlement before or after judgment, from the person or persons responsible for such injury, the Office of Victim Services is entitled to reimbursement from the applicant for two-thirds of the amount paid pursuant to any order for the payment of compensation for personal injury or death or for the provision of restitution services.

Second, the Act added a new subsection (c) to 54-212, to provide OVS with the discretion to abrogate its subrogation and lien rights when it finds that the exercise of those rights would cause "undue harm":

(c) Notwithstanding the provisions of subsection (a) of this section, if the Office of Victim Services finds that enforcement of its subrogation rights would cause undue harm to the applicant, the office may abrogate such rights. Notwithstanding the provisions of subsection (b) of this section, if the Office of Victim Services finds that enforcement of its lien rights would cause undue harm to the applicant, the office may abrogate such rights. "Undue harm" includes, but is not limited to, considerations of victim safety and recovery by the applicant of an amount that is less than the applicant's compensable economic losses.

Thus, Public Act. 95-175 provided the OVS with a new right to a statutory lien on the applicant's recovery against the wrongdoer, in addition to its preexisting subrogation and reimbursement rights, and gave it the authority to abrogate these lien rights and subrogation rights in the circumstances specified.

Your office has asked several questions regarding the applicability of Public Act 95-175 to claims filed and awards made at various times relative to the effective date of the Act, October 1, 1995. The answers to most of these questions and their subparts turn upon whether Public Act 95-175 should be applied retroactively or prospectively.

As a general rule, the law disfavors the retroactive application of a statute effecting substantive, as opposed to procedural, changes. Our Supreme Court, applying the principles embodied in Conn. Gen. Stat. 1-1(u) and 55-3 along with general principles of law, has consistently expressed a reluctance to "construe statutes retroactively where the statutes effect substantial changes in the law, unless the legislative intent clearly and unequivocally appears otherwise." State v. Lizotte, 200 Conn. 734, 741 (1986). "Statutes are applied retroactively in a very narrow category of cases. Retroactive application is the rule for amending statutes that are procedural in their impact. . . . An act that has been passed to clarify an existing statute, that is, one that was passed shortly after controversies arose as to the judicial interpretation of the original act, is also to be applied retroactively. . . . All other statutes are applied prospectively unless the legislature expressly specifies the contrary." Rudewicz v. Gagne, 22 Conn. App. 285, 288 (1990). Even if a statute is procedural, however, absent an express legislative intent, it will not be applied retroactively when "considerations of good sense and justice dictate that it not be so applied." DeAlmeida v. M.C.M. Stamping Corp., 29 Conn. App. 441, 450 (1992).

"These aids to legislative interpretation apply with equal force to amendatory acts which effectuate changes in existing statutes." American Masons' Supply Co. v. F.W. Brown Co., 174 Conn. 219, 223 (1978). Thus, a statute affecting vested rights or imposing new obligations is construed to apply prospectively unless the legislature clearly and unequivocally expresses its intent that the legislation shall apply retrospectively. Turner v. Turner, 219 Conn. 703, 712 (1991).

1. Public Act 95-175 8 (b): Statutory Lien

In determining the application of Public Act 95-175, 8(b), which created the right to a statutory lien, the first question to be resolved is whether the creation of this right constitutes a substantive right, suggesting prospective application, or merely creates a procedural or remedial means of enforcing the right to reimbursement that already existed.

A lien is a proprietary interest and a property right, even though it does not confer title to or possession in the property involved. Roundhouse Const. Corp. v. Telesco Masons Supplies Co., Inc., 168 Conn. 371, 372-73, vacated, 423 U.S. 809, 96 S. Ct. 20 (1975), on remand, 170 Conn. 155, cert. denied, 429 U.S. 889, 97 S. Ct. 246 (1976); 51 Am. Jur. 2d 2 (1970). It creates a priority interest in the property to which the lien attaches. INDEPENDENCE ONE MORTG. CORP. V. KATSAROS, 43 Conn. App. 71, 681 A.2d 1005 (1996). Although the OVS previously had a right of subrogation to, and reimbursement from, a cause of action the victim had against the person responsible for the injury or death, it did not have a right to an encumbrance on the proceeds of an action. This right was created by P.A. 95-175, 8, amending the statute. Therefore, we conclude that this section falls within the rubric of legislation that creates or affects substantive rights.

Based on the principles articulated above, there is a presumption that the legislature intended this substantive change in the law to have prospective applicability only, a presumption that can be overcome only by a clear expression of legislative intent to the contrary. There is no evidence from the face of the statute, or from the scant legislative history of Public Act 95-175, that would rebut the presumption of prospective application. We therefore conclude that the creation of lien rights is entitled to prospective application only.

Having determined that the change in Conn. Gen. Stat. 54-212(b) applies prospectively, we must now determine what constitutes a prospective application of the Public Act in the context of the questions you have asked. "The prospective application of new legislation is premised on the assumption that the legislature has intended to make a change in existing law." Darak v. Darak, 210 Conn. 462, 470 (1989). Statutory amendments effecting substantive changes will not be applied in a manner that would "disrupt settled expectations."

In Darak, the Connecticut Supreme Court faced the issue of how to apply a statutory amendment that changed the law concerning the modification of alimony and child support awards. The Court held that applying the amendment prospectively, "as a matter of common sense," had to mean applying it only to dissolutions entered after the effective date of the act. Darak v. Darak, 210 Conn. 462, 469 (1989); see also In Re TMI, 89 F. 3d 1106, 1113 (3rd Cir. 1996) (no vested right in an award of damages in tort case until it has been reduced to a final judgment); Hammond v. United States of America, 786 F. 2d 8, 12 (1st Cir. 1986) (same).

"If there are two possible interpretations of a statute, we will adopt the more reasonable construction over one that is unreasonable." Turner v. Turner, 219 Conn. 703, 713 (1991). In this case, "as a matter of common sense," it is most reasonable to construe subsection 8(b) of the Act to apply prospectively to awards made by OVS after October 1, 1995, the effective date of Public Act 95-175. The right to a lien would arise only at the point at which an award was made by OVS, since absent an award there would be no need for recovery of the funds. Further, the expectation of the parties was that the victim was entitled to the award subject to the subrogation and recovery rights of the OVS, but that if the victim were to bring an action against the criminally liable party, the proceeds of the action would not be subject to a lien.

2. Public Act 95-175 8 (c): Abrogating Lien and Subrogation Rights

On the other hand, the authority granted to OVS in section 8(c) of Public Act 95-175 to abrogate its subrogation rights should apply retrospectively. Although the authority to abrogate a state entitlement to recover funds owed to the state appears to be a new right under the statute, it is a remedial and procedural action that confirms the sovereign's preexisting authority to compromise or not pursue claims. See Conn. Gen. Stat. 3-7. Therefore, to the extent that this amendment permits the abrogation of OVS' subrogation rights, it applies retrospectively.2

Therefore, we answer your questions as follows:

1. Does the statutory lien right afforded to the Office of Victim Services by Public Act 95-175 apply to a claim for which compensation was awarded or restitution services were provided on or after October 1, 1995, if the claim for such compensation or restitution services was made prior to October 1, 1995? Yes.

2. Does the statutory lien right afforded to the Office of Victim Services by Public Act 95-175 apply to a claim for which compensation was awarded or restitution services were provided prior to October 1, 1995, but for which the applicant recovered damages from the person or the persons responsible for the injury or death on or after October 1, 1995? No.

3. Does the Office of Victim Service's authority under Sec. 8 of Public Act 95-175 to abrogate its subrogation and/or lien rights apply to the following situation:

(a) a claim is filed with the Office of Victim Services prior to October 1, 1995,

(b) the Office of Victim Services awards compensation or provides restitution services to the applicant on or after October 1, 1995, and

(c) the applicant recovers damages from the person or persons responsible for the injury or death on or after October 1, 1995. Yes.

4. Does the Office of Victim Service's authority under Sec. 8 of Public Act 95-175 to abrogate its subrogation and/or lien rights apply to the following situation:

(a) a claim is filed with the Office of Victim Services prior to October 1, 1995,

(b) the Office of Victim Services awards compensation or provides restitution services to the applicant prior to October 1, 1995, and

(c) the applicant recovers damages from the person or persons responsible for the injury or death on or after October 1, 1995? Yes, as to abrogation of subrogation rights; Not applicable to abrogation of statutory lien rights, which we have concluded apply only prospectively (see #2 above), and therefore would not be authorized in this instance.

5. You also ask the following related question: For those claims to which the authority to abrogate the subrogation and lien rights applies, must the subrogation and/or lien rights be abrogated in total or may they be abrogated in part?

We conclude that OVS may abrogate subrogation or lien rights in part in appropriate circumstances. ""Where a statute confers powers or duties in general terms, all powers and duties incidental and necessary to make such legislation effective are included by implication." 2B J. Sutherland, Statutory Construction 55.04, p. 283. We believe that the authority to abrogate in part is necessarily implied from the grant of authority to abrogate in toto. "A necessary implication . . . is one that is so strong in its probability that the contrary thereof cannot reasonably be supposed." Id. 55.03, p. 280 (citation omitted). This conclusion is supported by the language of the abrogation provision, which allows OVS to abrogate its right to recovery where, inter alia, the victim would end up with "an amount that is less than [his] compensable economic losses." 54-212(c). This suggests that OVS would be free to partially abrogate its recovery rights to the extent necessary to allow a victim to retain full compensation for his or her economic losses.

The legislature not having stated a contrary intention, we believe the legislature intended to permit the OVS to exercise its discretion to abrogate in part, incidental to its authority and discretion to abrogate in toto.

We hope that we have answered your questions.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Gregory T. D'Auria
Assistant Attorney General


1 This amendment was part of a number of changes made to other sections of the General Statutes expanding the rights of victims.

2 Of course, the OVS' authority to abrogate its statutory lien rights can exist only to the extent that it has statutory lien rights. Because we have concluded above that the OVS' right to a statutory lien applies only as to awards made after October 1, 1995, its authority to abrogate those lien rights could only exist to that extent as well.


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