Developments in New Hampshire Law
Laurence W. Getman, Esq.
Getman, Stacey, Schulthess & Steere, P.A.
Three Executive Park Drive, Suite 9
Bedford, NH 03110
ph 603.634.4300
www.getmanstacey.com
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Coverage Case
D’Amour v. Amica Mut. Insur. Co.
153 NH 170 (2006)
Facts:
• Plaintiff seeking Med Pay Benefits under auto policy for slip-and-fall accident
• Just prior to her accident, she parked her car in her apartment complex parking
space
• After removing her groceries from the car she began walking from her vehicle
when she slipped on a patch of ice and fell
• The plaintiff incurred approximately $58,000 in medical bills for the treatment
of her injuries
• Trial Court granted insurance carriers motion for Summary Judgment.
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Coverage Case
D’Amour v. Amica Mut. Insur. Co.
153 NH 170 (2006)
Policy Language:
The policy provided coverage for “reasonable expenses incurred for necessary
medical...services because of bodily injury...[s]unstained by an insured.” The
policy defined “insured” as “[y]ou or any family member...while occupying...a
motor vehicle...”
The policy defined “occupying” as “in, upon, getting in, on, out or off”
Plaintiff’s Argument:
The term “occupying” when defined as “getting out” was ambiguous and
should be construed in her favor
According to the plaintiff, the term “getting out” should include “the process
of moving away from the vehicle to a place of safety”
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Coverage Case
D’Amour v. Amica Mut. Insur. Co.
153 NH 170 (2006)
Defendant’s Argument:
Plaintiff had completed the act of “getting out” of her vehicle, because at the
time of the accident she was not longer “engaged in a transaction related to the
motor vehicle.”
Holding: Affirmed:
The Court agreed that “occupying” includes the process of moving to a place
of safety, but found that the facts demonstrated that plaintiff was not removing
herself to a place of safety at the time of her fall.
Since plaintiff had “severed her connection to her vehicle” and “was no longer
engaged in activities essential to its use” she was not entitled to medical
payments benefits under her policy.
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Coverage Case
Handley v. Providence Mutual
153 N.H. 340 (2006)
Facts:
• Handley owned a home building/remodeling company
• Handley Hired Miles as sheetrock subcontractor
• Handley Required proof of insurance from Miles before hiring him
• Olivier, Miles’ insurance agent, faxed a certificate of insurance to Handley that
said that the Miles had general liability coverage through Providence
• Oliver knew that Miles was not insured by Providence
• Handley injured at job by falling sheetrock
• Providence denied coverage and Handley filed a DJ action
• Trial Court, relying on Bradley Real Estate Trust v. Plummer & Rowe Ins.
Agency, held that the certificate created no contractual or duty on the part of
Providence to inform Handley of any inaccuracies contained in the certificate
issued by Olivier
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Coverage Case
Handley v. Providence Mutual
153 N.H. 340 (2006
Plaintiff Argued:
• Bradley did not apply, because unlike the certificate issued by Olivier, the
certificate issued in that case had disclaimers that said that the certificate:
– Was for informational purposes only;
– Conferred no rights on the certificate holder;
– Certified the existence of coverage on the date it was issued, only
Defendant Argued:
• Other language on the certificate that provided notice that the terms of
coverage are controlled by the policy and that the agent and insurer have no
duty to notify the certificate holder of a cancellation of change to the policy
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Coverage Case
Handley v. Providence Mutual
153 N.H. 340 (2006
Holding: Reversed and Remanded.
• The Supreme Court noted that the Bradley Case relied on a Colorado case,
Broderick Investment v. Strand Nordstrom
• In that case the policy holder changed coverage after a certificate of insurance
was issued to a third party
• That case was different from the case before the Court because the Broderick
Court was unable to conclude that the agent supplied any false information
• It was inappropriate for the trial court to apply the Bradley case because:
– The certificate issued to Hadley lacked the “informational purposes” and
“confers no rights” disclaimers; and
– It was undisputed that Providence’s authorized representative supplied
false information to Handley
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Coverage Case
Guilfoy v. USAA
153 N.H. 461 (2006)
Facts:
• Plaintiffs’ minor son killed while passenger in friend’s vehicle
• Friend insured by USAA with $100,000/ $300,000 coverage limits
• Plaintiffs brought a wrongful death claim on behalf of their son, and each
sought damages for loss of familial relationship under RSA 556:12, III
• USAA paid the $100,000 per person limit and denied coverage for the parents’
individual claims
• The plaintiffs filed a declaratory judgment action to determine whether their
loss-of-familial-relationship claims were covered by the policy
• The trial court granted USAA’s motion for summary judgment, ruling that
“loss of familial relationship” does not constitute a separate “bodily injury”
that would trigger additional coverage under the policy
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Coverage Case
Guilfoy v. USAA
153 N.H. 461 (2006)
Holding:
• The language of the loss of familial relationship provision parallels the section
of the wrongful death statute that creates a cause of action to compensate a
surviving spouse for loss of consortium
• In the context of non-death cases, even though a spouse of an injured party has
a separate cause of action for loss of consortium, it is derivative of the injured
party’s claim, and does not trigger an additional per-person bodily injury limit
of coverage
• Thus, loss-of-familial-relationship claims in a wrongful death action likewise
do not trigger an additional per person bodily injury limit under an automobile
insurance policy
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Coverage Case
Merchants Mutual v. Laighton Homes
153 N.H. 485 (2006)
Facts:
• Flawless Finishes was a subcontractor at a construction site
• An employee of Flawless was injured on the job site and Flawless had no
Workers’ Compensation Insurance
• Employee filed negligence actions against both Flawless and the general
contractor, Laighton Homes
• Laighton brought cross-claim against Flawless seeking indemnity in the event
that it was held liable to the employee
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Coverage Case
Merchants Mutual v. Laighton Homes
153 N.H. 485 (2006
Facts, continued:
• The subcontractor sought coverage for the general contractor’s indemnity
claims under a CGL policy issued to it by Merchants Mutual.
• Merchants Mutual denied coverage for the claims and brought a declaratory
judgment action against both the subcontractor and general contractor
• Flawless defaulted, and Merchants and Laighton filed cross motions for
summary judgment.
• The trial court ruled that the indemnity claims were covered under the
subcontractor’s policy and granted the general contractor’s summary judgment
motion.
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Coverage Case
Merchants Mutual v. Laighton Homes
153 N.H. 485 (2006)
Policy Exclusion at Issue:
This insurance does not apply to:...
(d) …Any obligation of the insured under a workers’ compensation, disability
benefits or unemployment compensation law.
(e) ….“Bodily injury” to:
(1) An “employee” of the insured arising out of and in the course of:
(a) Employment by the insured; or
(b) Performing duties related to the conduct of the insured’s business…
This exclusion applies:
(1) Whether the insured may be liable as an employer or in any other capacity;
and
(2) To any obligation to share damages with or repay someone else who must
pay damages because of the injury.
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Coverage Case
Merchants Mutual v. Laighton Homes
153 N.H. 485 (2006)
Holding: Reversed and Remanded
• The Court found that the CGL policy issued by Merchants contained two
unambiguous exclusions.
– Exclusion “e” clearly and unambiguously applies to claims for bodily
injury damages which arise out of an employee’s employment with the
insured.
– The language in part (2) of exclusion “e” clearly and unambiguously
applies to third party indemnity claims.
• The general contractor’s indemnity claims were the type of claims that were
ordinarily compensable under a standard worker’s compensation and
employer’s liability policy; and
• Subcontractor’s failure to procure such a policy would not result in a finding
of coverage under the CGL policy.
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Coverage Case
Belanger v. MMG Ins. Co.
153 N.H. 584 (2006)
Facts:
• Plaintiff, in her early twenties, was injured in an automobile collision
• Date of loss: June 26, 2003
• Plaintiff sought uninsured motorist benefits under a policy issued to her
mother by MMG
• At that time she had been living with her mother in Hampton for less than a
month after moving out of her Massachusetts apartment
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Coverage Case
Belanger v. MMG Ins. Co.
153 N.H. 584 (2006)
Facts Continued:
• While living with her mother, the plaintiff found another apartment to rent
with her sister
• Plaintiff’s new lease started on July 1st
• Plaintiff had already paid the first month’s rent
• Landlord said plaintiff could move in at any time
• On DoL, Plaintiff and sister were driving to the apartment to clean it
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Coverage Case
Belanger v. MMG Ins. Co.
153 N.H. 584 (2006)
Facts Continued:
• The MMG policy provided coverage to any “family member” defined as “a
person related to [the policyholder] by blood, marriage or adoption who is a
resident of [the policyholder’s] household”
• The policy did not define “resident”
• MMG denied coverage, taking the position that the plaintiff was not a resident
of her mother’s household at the time of the accident
• The plaintiff filed a DJ action
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Coverage Case
Belanger v. MMG Ins. Co.
153 N.H. 584 (2006)
Trial Court :
• Granted MMG’s motion for summary judgment
• The Trial Court reasoned that the definition of “resident” incorporated “a
present intent to remain within the State for a period of time”
• Since the plaintiff had rented another apartment, the court concluded that it
was not her intent to reside with her mother for the foreseeable future
• Therefore, she was not a resident of her mother’s household and she was not
entitled to benefits under her mother’s policy
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Coverage Case
Belanger v. MMG Ins. Co.
153 N.H. 584 (2006)
Holding: Reversed and Remanded
• The Court held that by incorporating the “intent to remain” requirement, the
trial court applied an erroneous definition of “resident”
• The term “residence” in the context of an insurance policy means “the place
where an individual physically dwells, while regarding it as his principal place
of abode”
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Coverage Case
Warner v. Clarendon Insurance
910 A.2d 1171 (N.H. 2006)
Facts:
• Maine resident leased a Ryder Truck from Idaho Rental Agency
• He also entered rental agreement and put Brown down as a additional driver
• Ryder policy issued by Frontier, who was reinsured by Clarendon
• En route to Maine, Brown had accident with vehicle driven by Warner in New
Hampshire
• Ryder policy had $2 M liability limit subject to several endorsements
• Carrier took position that endorsements limited liability coverage to $25 K
under the financial responsibility laws of Idaho and N.H.
• Warner filed DJ asserting $ 2 M in coverage available
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Coverage Case
Warner v. Clarendon Insurance
910 A.2d 1171 (N.H. 2006)
Policy Endorsements at Issue:
STAR-2 : “The coverage provided by this policy is primary
insurance with respect to the ‘rentee’ or driver as an ‘insured’
under an ‘auto’ rental contract, but only with respect to the limit
of insurance required under the Financial Responsibility law for
the state in which the ‘auto’ is rented.”
STAR-3 : “It is agreed that the coverage provided by this policy
is primary insurance with respect to the ‘rentee’ or driver as an
‘insured’ under an ‘auto’ rental contract.”
STAR-7 : “The insurance coverage provided by this policy to a
‘rentee’ is subject to the terms, conditions, restrictions, and
limitations contained in the rental agreement between [Ryder]
and such ‘rentee’”.
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Coverage Case
Warner v. Clarendon Insurance
910 A.2d 1171 (N.H. 2006)
Trial court :
• Granted Clarendon’s motion for summary judgment
• Ruled that applicable Coverage Limit was $25,00
• And that Ryder policy was excess
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Coverage Case
Warner v. Clarendon Insurance
910 A.2d 1171 (N.H. 2006)
Holding on appeal:
• Star-7 endorsement did not violate the N.H. Financial Resp. Act because
policy clearly explained the reduction in coverage.
• N.H. FRA did not apply because:
– Policy not issued under RSA 264:14
– Truck was not registered or principally garaged in N.H.
• Supreme Court rejected plaintiff’s argument that policy references to
“applicable law” did not require application of Florida financial responsibility
law (Florida is Ryder’s home state)
• $25 K in coverage appropriate because it is the minimum required by Maine,
N.H. and Idaho financial responsibility laws.
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Coverage Case
Hartley v. Electric Insurance
No. 2005-903 (January 17, 2007)
Facts:
• Hartley, driving truck, slammed on brakes when phantom vehicle failed to
yield right of way
• Straps holding box saw broke on impact, and Hartley felt saw shift in truck
• Hartley stopped to inspect and found saw leaning over gate, and gas leaking
onto road from saw
• Hartley was injured while attempting to re-secure saw
• Hartley made claim for UM benefits
• Electric Insurance denied claim
• In DJ action Trial Court found no UM coverage because Hartley’s intention
act of attempting to reposition saw broke the chain of causation
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Coverage Case
Hartley v. Electric Insurance
No. 2005-903 (January 17, 2007)
Holding: Reversed and Remanded
• “Accident” is defined as “an undesigned contingency…a happening by
chance, something out of the usual course of things, unusual, fortuitous, not
anticipated, and not naturally to be expected”
• While a tenuous connection is not sufficient to establish coverage, neither is
proximate causation required
• Here, the actions of the unidentified driver resulted in a series of unexpected
events that ultimately resulted in the plaintiff’s injury
• This causal connection was sufficient to trigger coverage under the policy
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Liability Case
Desclos v. So. N.H. Medical Center
153 N.H. 607 (2006)
Facts:
• Medical negligence claim for spinal cord injury resulting in quadriplegia
• Defendants sought to compel plaintiff's psych records
• Trial Court granted on the grounds that they were relevant to issues of
plaintiff’s pain-and-suffering and loss-of-enjoyment-of-life claims
• Trial court also ruled plaintiff had waived psychotherapist-patient privilege
• Plaintiff appealed arguing
– Trial court violated psychotherapist-patient privilege; and
– Claim for generic damages does not constitute a waiver of that privilege
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Liability Case
Desclos v. So. N.H. Medical Center
153 N.H. 607 (2006
Holding: Vacated and Remanded
• Patient communications with licensed mental health practitioner are privileged
under N.H.R.Ev. 503(b) and RSA 330-A:32
• Disclosure of privileged information may be ordered only if
1. The court finds a waiver of the privilege; or
2. The court orders a piercing of the privilege
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Liability Case
Desclos v. So. N.H. Medical Center
153 N.H. 607 (2006)
Holding Continued:
1)
Waiver:
Requires that the plaintiff put the confidential communication at issue by
injecting the privileged material into the case so that the information is
actually required to resolve that issue
Generic mental suffering claims do not require expert testimony and do not
result in an implied waiver of the privilege
Since the record did not contain a specific description of the damage claims,
the Court remanded the case for findings on this issue
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Liability Case
Desclos v. So. N.H. Medical Center
153 N.H. 607 (2006)
Holding Continued:
2)
Piercing the Privilege:
A party seeking to pierce the privilege must establish an “essential need”
for the records by proving:
(a) the information is unavailable from another source; and
(b) that there is a compelling justification for its disclosure
Case remanded with instructions that the trial court determine if defendants
could demonstrate an essential need, and if so, conduct and in camera
review of the records to limit disclosure to information relevant to the
purpose for which they are disclosed
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Liability Case
Paul v. Sherburne
153 N.H. 747 (2006)
Facts:
•
•
•
•
•
•
Sherburne filed civil stalking petition against Paul
Court issued ex parte temporary retraining order (TRO)
Sherburne failed to appear at final hearing on the merits
Stalking petition dismissed
Paul then sued Sherburne for civil malicious prosecution
Trial court dismissed claim for two reasons:
– Petition was not filed without probable cause because the TRO was issued
– Paul had not received a “favorable termination” of the stalking petition
because it was dismissed on procedural grounds
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Liability Case
Paul v. Sherburne
153 N.H. 747 (2006)
Holding: Reversed and Remanded
Elements of Malicious Prosecution Claim:
1. Plaintiff was subject to criminal proceeding instituted by defendant;
2. Without probable cause;
3. With Malice; and
4. The proceedings were terminated in plaintiff’s favor
Here, issuance of ex parte TRO did not constitute conclusive evidence of
probable cause because TRO issued on information provided by Sherburne
only
Dismissal of petition constituted favorable termination, despite the fact that it was
the result of Sherburne’s failure to appear
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Liability Case
Vandemark v. McDonald’s
153 N.H. 747 (2006)
Facts:
• Colley/McCoy was franchisee of a McDonald’s restaurant
• McDonald's leased building to Colley/McCoy
• License Agreement and Lease both identified Colley/McCoy as an
independent contractor responsible for all obligations and liabilities of the
business
• Operations and Training Manual published by McDonald’s included safety
and security precautions
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Liability Case
Vandemark v. McDonald’s
153 N.H. 747 (2006)
Facts Continued:
• The manual stated that it was company policy for restaurants owned and
operated by McDonalds, but also stated that independent owner/operators “are
encouraged to adopt appropriate policies for their restaurant”
• In June 2002, a McDonald’s field consultant hired by to monitor McDonald’s
restaurants found several deficiencies in the restaurant’s execution of the
safety and security system, but did not request the development of any action
plan to rectify these deficiencies
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Liability Case
Vandemark v. McDonald’s
153 N.H. 747 (2006)
Facts Continued:
• At 3:00 AM on February 6, 2003, Plaintiff was assaulted and severely beaten
while working at Colley/McCoy’s restaurant
• After the attack, plaintiff pushed restaurant’s panic button and then lost
consciousness
• It was later discovered that the panic button was broken, and plaintiff lay on
floor unconscious until discovered by fellow employee later that morning
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Liability Case
Vandemark v. McDonald’s
153 N.H. 747 (2006)
Trial Court:
• Plaintiff sued McDonald’s for Negligence and Vicarious Liability
• Trial Court granted McDonald’s motion for Summary Judgment on both
counts because:
– McDonald’s did not assume a duty to ensure that Colley/McCoy would
follow its security measures designed to protect employees; and
– McDonald’s did not retain sufficient control over Colley/McCoy’s security
policy so as to subject it to vicarious liability
• Plaintiff appealed
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Liability Case
Vandemark v. McDonald’s
153 N.H. 747 (2006)
Held: Affirmed
1.
Negligence: The trial court correctly determined that McDonald’s made no
affirmative attempt to provide security at the franchise restaurant and,
therefore, did not assume a duty to the plaintiff
2.
Respondeat Superior: Absent a showing of control over security measures
employed by the franchisee, a franchisor cannot be held liable for a security
breach
In this case, although McDonald’s maintained authority to ensure that
products and services offered by Colley/McCoy met its standards, this
authority did not extend to control over security operations
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Liability Case
DeBenedetto v. CLD Consulting
153 N.H. 793 (2006)
Holding:
Jury May Be Instructed To Apportion Fault Among All Negligent Tortfeasors,
Including Tortfeasors Who Were Never A Party To The Suit Or Who Are
Immune From Financial Liability
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Liability Case
Meier v. Town of Littleton
910 A.2d 1243 (N.H. 2006)
Facts:
• Mr. and Mrs. Zolton were pedestrians walking across a crosswalk when they
were struck by a vehicle operated by Meier
• Mr. Zolton was injured and his wife killed in the accident
• In addition to suing Meier, Zolton also sued the Town of Littleton and the
State in the same action alleging the crosswalk was improperly designed
• Zolton settled case and gave release to all parties, but neither State nor Town
required Meier to give them a release
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Liability Case
Meier v. Town of Littleton
910 A.2d 1243 (N.H. 2006)
Facts:
• Meier sued Town and State for emotional harm and loss of income resulting
from deficient crosswalk
• Meier did not seek contribution or indemnification for settlement to Zolton
• Trial Court dismissed on grounds of res judicata
• Meier appealed
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Liability Case
Meier v. Town of Littleton
910 A.2d 1243 (N.H. 2006)
Holding: Reversed and Remanded
For the doctrine of res judicata to apply:
1.
2.
3.
The parties must be the same or in privity with one another;
The same cause of action must be before the court in both instances; and
A final judgment on the merits must have been entered.
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Liability Case
Meier v. Town of Littleton
910 A.2d 1243 (N.H. 2006)
Holding Continued:
1.
Same Parties: for purposes of the doctrine of res judicata this means
“adversarial parties.” Co-defendants are not necessarily adversaries. Here,
Zolton and co-defendants were never formally arrayed on the opposite sides
of any issue in the original action
2.
Same Cause of Action: Meier’s action was to recover for his own emotional
damages and economic losses from the Town and State, and not to recover
the settlement he paid to Zolton; thus the claims are not the same cause of
action
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Liability Case
Corcoran v. Harmon
910 A.2d 1211 (N.H. 2006)
Facts:
• The Parties submitted their dispute concerning liability for an automobile
collision to a three person arbitration panel
• After arbitration, plaintiffs learned of a possible conflict of interest on the part
of the neutral arbitrator
• Plaintiffs did not notify the arbitration panel of the conflict until nearly a
month after the panel issued its decision that was unfavorable to the plaintiffs
• Plaintiffs later sent the panel a second letter detailing another possible basis
for a conflict of interest
• The arbitration panel subsequently withdrew its decision based on the second
alleged conflict
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Liability Case
Corcoran v. Harmon
910 A.2d 1211 (N.H. 2006)
Facts Continued:
• Defendant sought confirmation of the original arbitration decision under RSA
542:8, which states:
At any time within one year after the award is made any party to the arbitration may
apply to the superior court for an order confirming the award, correcting or modifying
the award for plain mistake, or vacating the award for fraud, corruption, or
misconduct by the parties or by the arbitrators, or on the ground that the arbitrators
have exceeded their powers
• Superior Court denied the defendant’s motion, ruling that there was no
decision for it to act on since the decision had been withdrawn by the
arbitration panel
• The defendant appealed, arguing that the trial court erred when it ruled that
the arbitration panel’s withdrawal of its decision precluded review
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Liability Case
Corcoran v. Harmon
910 A.2d 1211 (N.H. 2006)
Holding: Reversed and Remanded
• The Court ruled that the plain meaning of the term “award” includes a “final
decision”
• Thus, a party may obtain judicial review of any final arbitration decision under
RSA 542:8, including a decision to withdraw an award
• The Court remanded the matter to the trial court for consideration of the
defendant’s claims that:
– 1) the arbitration panel did not have the authority to vacate its own
decision; and
– 2) even if the panel has authority to withdraw its award, it may not do so
without sufficient reason
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Liability Case
Vermont Wholesale v. J.W. Jones Lumber
914 A.2d 818 (N.H. 2006)
Facts:
• Vermont Wholesale distributes specialty lumber in N.H. and three other states
• Jones Lumber supplies flooring to Vermont Wholesale, but does not advertise
in N.H.
• Jones Lumber is an N.C. corporation with its sole place of business in that
state, and no direct contacts with N.H.
• Vermont Wholesale purchased flooring from Jones, and then sold it to Central
Building supply who then sold it to a contractor
• N.H. homeowner sued contractor alleging that the flooring was defective
• Contractor brought third-party suit against Vermont Wholesale, who then sued
both Central and Jones
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Liability Case
Vermont Wholesale v. J.W. Jones Lumber
914 A.2d 818 (N.H. 2006)
Trial Court:
• Jones filed a motion to dismiss for lack of personal jurisdiction, claiming it did
not have sufficient minimum contacts with N.H. to satisfy the Due Process
Clause
• Vermont Wholesale argued that by selling its flooring to a distributor with the
knowledge that the product would be sold in a four-state region that included
New Hampshire, Jones had sufficient minimum contacts to confer N.H. with
jurisdiction
• Trial Court denied the motion to dismiss
• Jones appealed
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Liability Case
Vermont Wholesale v. J.W. Jones Lumber
914 A.2d 818 (N.H. 2006)
Holding: Vacated and Remanded for application of correct standard
• Issue on appeal was whether N.H. had specific jurisdiction over Jones
• Specific jurisdiction exists when “the cause of action arises out of or relates to
the defendant’s forum-based contacts,” and requires that the following factors
must be met:
1. The contacts must relate to the cause of action;
2. The defendant must have purposefully availed itself of the protection
of the forum state’s laws; and
3. It must be fair and reasonable to require the defendant to defend the
suit in the forum state
• Under the “stream of commerce plus” rule followed in this state, defendant’s
actual awareness that its product may find its way to N.H. is not sufficient to
subject it to jurisdiction here
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Liability Case
Cloutier v. City of Berlin
907 A.2d 955 (N.H. 2006)
Facts:
• A manhole cover in a Berlin intersection was displaced by a heavy rainstorm
• Plaintiff was injured when she drove through that intersection and either drove
over the open manhole or collided with its displaced cover
• City of Berlin never received any complaints of this manhole cover becoming
displaced
• But they did receive reports of other manhole covers similarly situated
becoming displaced during heavy rainfall
• Plaintiff sued City
• Jury Verdict for City
• Plaintiff’s post trial motions denied
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Liability Case
Cloutier v. City of Berlin
907 A.2d 955 (N.H. 2006)
Issue on Appeal:
• Plaintiff appealed jury instruction regarding the municipal liability provisions
in RSA 231:90 -92-a, contending that these provisions are “immunity
defenses” the City was prohibited from asserting because it had liability
insurance
• Plaintiff also argued that the trial court’s inclement weather instruction, given
pursuant to RSA 231:92-a, was erroneous
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Liability Case
Cloutier v. City of Berlin
907 A.2d 955 (N.H. 2006)
Holding: Affirmed
Both Jury Instructions upheld:
1.
2.
RSA 231:92, enacted under section entitled Municipality Standard of Care,
is not an immunity provision
Instead it establishes that a municipality has a different statutory
standard of care from that of a private corporation
The Supreme Court also noted that there was trial testimony tending to
support the argument that the hazard at issue was caused solely by
inclement weather
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
New Statute
Changes RSA 508:14
Session 2006, Chapter 95
Effective February 3, 2006
Landowner Immunity Statute Amended To Provide Immunity
For Those Who Maintain Trails On Land Open
For Public Recreational Use
• Reverses 2005 case of Estate of Kenison v. Dubois, in which Court held that
landowner immunities under RSA 508:14 or RSA 212:34 (providing immunity
for OHRV use of land) were not available to the operator of a snowmobiletrail-grooming machine who was voluntarily maintaining a trail on someone
else’s land
• In that case, the Court reasoned that to qualify for that immunity one must at
least have the authority to permit persons to use or enter the land
• Under this new provision, trail maintenance groups, like snowmobile clubs
and their members, will not have to own the trails that they maintain to qualify
for recreation use immunity
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
New Statute
New RSA Chapter 357-G
Session 2006, Chapter 95
Effective February 3, 2006
New Statute Enacted Governing Access To Data Contained
In Automobile Event Data Recorders (“EDRs”)
Defines an Event Data Recorder as a devise that:
1. Records vehicle speed or direction
2. Records vehicle location data
3. Records vehicle steering performance
4. Records vehicle brake performance, including but not limited to,
whether brakes were applied before a crash
5. Records the driver’s seatbelt status
6. Or has the ability to transmit information concerning a crash in which
the motor vehicle has been involved to a central communications
system or other external device when a crash occurs
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
New Statute
New RSA Chapter 357-G
Session 2006, Chapter 95
Effective February 3, 2006
Event Data Recorder Statute Continued:
Limits authority to retrieve EDR data to:
1.
2.
3.
4.
The owner, owner’s agent or other person with the owner’s consent;
A person who has obtained a court order permitting the retrieval;
Any mechanic for the purposes of diagnosing, servicing or repairing the
subject vehicle; and
Any person attempting to determine the need for or facilitating
emergency medical response in the event of a motor vehicle crash
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Pending Legislation
Senate Bills
SB 32
• Would increase cap on small claims jurisdiction from $5,000 to $10,000
SB 38
• Would require that rejection of UM coverage that matches coverage limits of
umbrella policies be made by the insured in writing
SB 150
• Would require that drivers who are residents of foreign countries have
insurance coverage
• Would also prohibit the renting of a motor vehicle to a resident of another
country who does not have automobile liability insurance
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Pending Legislation
Senate Bills
Continued
SB 188
• Would subject insurance companies to Consumer Protection Act remedies for
unfair claims practices
• The Consumer Protection Act, RSA 358-A, remedies include:
– Minimum damages award of $1,000
– Multiple damages of 2 to 3 times actual damages
– Costs; and
– Attorney fees
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Pending Legislation
Senate Bills
Continued
SB 189
• Would prohibit health insurance carriers from coordinating benefits against
Med Pay coverage; and
• Would further provide that Med Pay coverage could not be used to offset or
coordinate with any other insurance benefits
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Pending Legislation
House Bills
HB 77
• Would prohibit an insurer from cancelling or refusing to issue a policy on the
basis of political affiliation or an elected civic position
HB 143
• Would repeal the result of the DeBennedetto case by changing the definition
of “party” in RSA 507:7-e
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Pending Legislation
House Bills
Continued
HB 169
• Adds to the list of Unfair Claims Settlement Practices under RSA 417:4,
XV(a) the act of “knowingly underestimating the value of any claim”
HB 573
• Would permit a judgment creditor to request that a state agency refuse to
renew a judgment debtor’s motor vehicle, occupational or recreation license or
permit until the judgment is paid in full
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Pending Legislation
House Bills
Continued
HB 189
• Would prohibit insurance companies from refusing to issue motor vehicle
insurance or increasing rates for a person because that person is a “volunteer
driver”
• Defines “volunteer driver” as a person who provides services, including
transporting individuals or goods, without compensation above expenses to a
charitable organization as defined in RSA 7:21
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Suspicious Claims:
New Hampshire
Stephen J. Schulthess, Esq.
Getman, Stacey, Schulthess & Steere, P.A.
Three Executive Park Drive, Suite 9
Bedford, NH 03110
ph 603.634.4300
www.getmanstacey.com
April 18, 2007
New Hampshire Adjusters Association
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Title LXII Criminal Code
Chapter 638: Fraud
638:20 Insurance Fraud:
I. For the purposes of this section, ""statement'' includes, but is not limited to,
any notice, statement, proof of loss, bill of lading, receipt of payment, invoice,
account, estimate of property damages, bill for service, diagnosis, prescription,
hospital or doctor records, x-rays, test results, or other evidence of loss, injury
or expense.
I-a. For purposes of this section, ""insurer'' includes any insurance company,
health maintenance organization, or reinsurance company, or broker or
agent thereof, or insurance claims adjuster.
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Title LXII Criminal Code
Chapter 638: Fraud
638:20 Insurance Fraud, cont’d:
II. A person is guilty of insurance fraud, if, such person knowingly and with intent
to injure, defraud or deceive any insurer, conceals or causes to be concealed
from any insurer a material statement, or presents or causes to be presented to
any insurer, or prepares with knowledge or belief that it will be so presented,
any written or oral statement including computer-generated documents,
knowing that such statement contains any false, incomplete or misleading
information which is material to:
(a) An application for the issuance of any insurance policy.
(b) The rating of any insurance policy.
(c) A claim for payment or benefit pursuant to any insurance policy.
(d) Premiums on any insurance policy.
(e) Payments made in accordance with the terms of any insurance policy.
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Title XXXVII Insurance
Chapter 417: Unfair Insurance Trade Practices
417:28 Insurance Fraud Investigation Unit:
• Reporting of Fraudulent Claims by Insurers: Any company which believes
that an insurance fraud has been committed shall, within 60 days of forming
such belief, send to the unit, on a form prescribed by the unit, the information
requested and such additional information relative to the claim and other
parties claiming loss or damage because of the claim as the unit may require.
The unit shall review such report and select such claims as, in its judgment,
warrant further investigation. In the absence of fraud or malice, no public
official or insurance company or person who furnishes information on behalf
of the insurance company shall be liable for damages in a civil action or
subject to criminal prosecution for any oral or written statement made or any
other action taken that is necessary to supply information required pursuant to
this section.
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Title XXXVII Insurance
Chapter 400-A: Insurance Department
400-A:36-b Immunity:
• II. In the absence of actual malice, no person shall be subject to civil liability
for libel, slander or any other cause of action arising from filing reports or
furnishing information concerning any activity that may constitute insurance
fraud as defined in RSA 638:20, if such reports or information is provided to
or received from the commissioner, law enforcement officials, the National
Association of Insurance Commissioners, any state or federal agency
established to detect, prevent or prosecute insurance fraud, or an insurance
company authorized to do business in the state. The immunity conferred by
this section applies unless the person seeking to impose civil liability proves
actual malice. Any person against whom a civil action is brought, and who is
found to be entitled to immunity from liability under this section, shall be
entitled to recover reasonable attorney's fees and costs from the person who
brought the civil action.
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Claims Settlement Time Limits
Ins 1001.02
• The insurer shall within 30 days from the date of the letter setting forth a need
for further time and every 30 days thereafter, sent to the insured, claimant or
authorized representative of either, a letter setting forth the reasons for the
delay in the claim settlement, unless the insured, claimant or authorized
representative otherwise agrees.
• An insurer shall not justify a delay in processing or paying a claim on the
grounds of suspected fraud unless the insurer has notified the department and
has provided the department with specific reasons to support their suspicions.
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Concealment or Fraud
• The entire policy will be void if, whether before or after a loss, an “insured”
has:
– Intentionally concealed or misrepresented any material fact or
circumstance;
– Engaged in fraudulent conduct; or
– Made false statements; relating to this insurance.
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
General Provisions
Fraud
• We do not provide coverage for any “insured” who has,
– Falsely attested to being a New Hampshire resident, on the Statement of
Residency required by NH Rev. Stat. Ann. Sect 417-A, when this policy
was issued or renewed. However, we do provide coverage for that
“insured” for “bodily injury” or “property damage” for which that
“insured” becomes legally responsible because of an auto accident.
If we make a payment for “bodily injury” or “property damage” for which
that “insured” becomes legally responsible, we are entitled to
reimbursement for all such payments in accordance with the Our Right to
Recover Payment provision contained in this endorsement.
– Made fraudulent statements or engaged fraudulent conduct in connection
with any accident or loss for which coverage is sought under this policy.
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Title XXXVII Insurance
Chapter 417-A: Refusal to Issue, Cancellation
and Refusal to Renew Auto Insurance
417-A:3-b Statement of Residency:
I. All applicants for coverage under new policies of automobile insurance shall
sign a statement of residency, on a form prescribed by the insurance
department, which the insurer shall provide as part of the application or upon
delivery of the policy papers to the insured for such insurance.
II. The statement prescribed in paragraph I shall also contain the definition of
"resident'' adopted by the commissioner pursuant to RSA 412:43, II.
III. A person who falsely attests to the statement of residency prescribed in
paragraph I shall be subject to prosecution for unsworn falsification under
RSA 641:3, and, upon conviction, to imposition of the maximum fine without
suspension or diminution, along with other penalties authorized by law.
IV. Any nonresident who meets the requirements for nonresident registration
under RSA 261:46 shall be exempt from the provisions of paragraph I.
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
New Hampshire Residency Status
• A resident is a person who maintains his or her true, fixed and permanent
residence within the State of NH, does not claim a residence in any other state
for any purpose and who has, through all of his or her actions, demonstrated a
current intent to designate that the permanent residence is his or her principal
place of physical presence for the indefinite future to the exclusion of all
others; or
• A resident is a person who has previously met the conditions above and who
now maintains a permanent residence in NH for the entire year and has
actually spend more than 183 days in NH during the previous calendar year.
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Title XXXVII Insurance
Chapter 407: The Fire Insurance
Contract and Suits Thereon
407:11 Policy Value:
• If a building insured for a specified amount, whether under a separate policy
or under a policy also covering other buildings, is totally destroyed by fire or
lightning without criminal fault on the part of the insured or his assignee, the
sum for which such building is insured shall be taken to be the value of the
insured's interest therein unless over-insurance thereon was fraudulently
obtained.
• If an insured building is only partially destroyed by fire or lightning, the
insured shall be entitled to the actual loss sustained not exceeding the sum
insured.
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Title XXXVII Insurance
Chapter 407: The Fire Insurance
Contract and Suits Thereon
407:12 Adjustment and Payment of Loss:
• The company shall begin the adjustment of the loss within 15 days after
receipt of notice of loss. The amount of loss under a fire insurance policy shall
be due and payable in 60 days after receipt by the insuring company of proof
of loss, and the insured may commence an action after the expiration of that
time to recover the same.
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Title XXXVII Insurance
Chapter 407: The Fire Insurance
Contract and Suits Thereon
407:15 Notice to Insured:
• Unless the company shall notify the insured that any action will be forever
barred by law if his writ is not served on the company within 12 months next
after such notification, he may bring his action at any time.
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.
Craig Krigsman v. Progressive
Northern Mutual Insurance Co.
• The effect of an insured’s breach of an EUO provision differs from the failure
to provide timely notice. A delay in receiving notice does not necessarily
impair the insurer’s ability to investigate the claim. See id. In contrast, an
insured’s refusal to submit to an EUO significantly affects the insurer’s
investigation of the claim. See Lorenzo-Martinez, 790 N.E.2d at 696. Here,
Progressive requested the EUO in order to resolve the residency issue and
make a coverage determination. We will not require Progressive to prove that
is has been prejudiced by the petitioner’s refusal to submit to the EUO.
• Because we hold that compliance with the EUO request is a condition
precedent to filing suit under the petitioner’s policy, we affirm that trial court’s
order denying the petitioner's request for declaratory relief.
This presentation is for information only. The information herein is not legal advice and your review of this presentation does not
establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.