This presentation is for information only. The information herein is not legal advice and your...

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.

Developments in New Hampshire LawLaurence W. Getman, Esq.

Getman, Stacey, Schulthess & Steere, P.A.Three Executive Park Drive, Suite 9

Bedford, NH 03110ph 603.634.4300

www.getmanstacey.com


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.


Coverage Case


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”


Coverage Case


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.


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


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


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


Coverage Case

Guilfoy v. USAA153 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


Coverage Case

Guilfoy v. USAA153 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


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


Coverage Case


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.


Coverage Case


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.


Coverage Case


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.


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


Coverage Case


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


Coverage Case


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


Coverage Case


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


Coverage Case



• 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”


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


Coverage Case


Policy Endorsements at Issue:STAR-2 : “The coverage provided by this policy is primaryinsurance with respect to the ‘rentee’ or driver as an ‘insured’under an ‘auto’ rental contract, but only with respect to the limitof insurance required under the Financial Responsibility law forthe state in which the ‘auto’ is rented.”STAR-3 : “It is agreed that the coverage provided by this policyis 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’”.


Coverage Case


Trial court :

• Granted Clarendon’s motion for summary judgment

• Ruled that applicable Coverage Limit was $25,00

• And that Ryder policy was excess


Coverage Case


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.


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


Coverage Case

Hartley v. Electric Insurance No. 2005-903 (January 17, 2007)


• “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


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


Liability Case


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


Liability Case


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


Liability Case


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


Liability Case

Paul v. Sherburne153 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


Liability Case

Paul v. Sherburne153 N.H. 747 (2006)

Holding: Reversed and RemandedElements 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


Liability Case

Vandemark v. McDonald’s153 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


Liability Case


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


Liability Case


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


Liability Case


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


Liability Case


Held: Affirmed1. 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


Liability CaseDeBenedetto 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


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



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


Liability Case

Meier v. Town of Littleton 910 A.2d 1243 (N.H. 2006)


For the doctrine of res judicata to apply:

1. The parties must be the same or in privity with one another;

2. The same cause of action must be before the court in both instances; and

3. A final judgment on the merits must have been entered.



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


Liability Case

Corcoran v. Harmon910 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


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


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


Liability CaseVermont Wholesale v. J.W. Jones

Lumber914 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



Lumber914 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



Lumber914 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


Liability CaseCloutier 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



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



907 A.2d 955 (N.H. 2006)

Holding: Affirmed

Both Jury Instructions upheld:

1. 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

2. 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


New StatuteChanges RSA 508:14

Session 2006, Chapter 95Effective 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 snowmobile-trail-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


New StatuteNew RSA Chapter 357-G


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 direction2. Records vehicle location data3. Records vehicle steering performance4. Records vehicle brake performance, including but not limited to,

whether brakes were applied before a crash5. Records the driver’s seatbelt status6. 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


New StatuteNew RSA Chapter 357-G


Event Data Recorder Statute Continued:

Limits authority to retrieve EDR data to:

1. The owner, owner’s agent or other person with the owner’s consent;

2. A person who has obtained a court order permitting the retrieval;

3. Any mechanic for the purposes of diagnosing, servicing or repairing the subject vehicle; and

4. Any person attempting to determine the need for or facilitating emergency medical response in the event of a motor vehicle crash


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


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


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


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


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


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


Stephen J. Schulthess, Esq. Stephen J. Schulthess, Esq.

Getman, Stacey, Schulthess & Steere, P.A.Getman, Stacey, Schulthess & Steere, P.A.Three Executive Park Drive, Suite 9Three Executive Park Drive, Suite 9

Bedford, NH 03110Bedford, NH 03110ph 603.634.4300ph 603.634.4300

www.getmanstacey.comwww.getmanstacey.com

April 18, 2007April 18, 2007New Hampshire Adjusters AssociationNew Hampshire Adjusters Association

Suspicious Claims:Suspicious Claims:New HampshireNew Hampshire


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.


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.


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.


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.


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.


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.


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.


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.


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.


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.




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.




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.


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...

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Transcript of This presentation is for information only. The information herein is not legal advice and your...