STATE LAW SUMMARY Overview of the State of New Hampshire

Updated 2013 Preparers: Laurence H. Leavitt and Melanie H. Stevens McCOY LEAVITT LASKEY LLC Yarmouth, Maine Table of Contents Overview of the New Hampshire Court System

A. Trial Courts B. Appellate Courts

Procedural

A. Venue B. Statute of Limitations C. Time for Filing an Answer D. Dismissal Re-Filing of Suit

Liability A. Negligence B. Negligence Defenses C. Gross Negligence, Recklessness, Willful and Wanton Conduct D. Negligent Hiring and Retention E. Negligent Entrustment F. Dram Shop G. Joint and Several Liability H. Wrongful Death and/or Survival Actions I. Vicarious Liability J. Exclusivity of Workers’ Compensation

Damages A. Statutory Caps on Damages B. Compensatory Damages for Bodily Injury C. Collateral Source D. Pre-Judgment / Post Judgment Interest E. Damages for Emotional Distress F. Wrongful Death and/or Survival Action Damages G. Punitive Damages H. Diminution in Value of Damaged Vehicle I. Loss of Use of Motor Vehicle

Evidentiary Issues A. Preventability Determination B. Traffic Citation from Accident

C. Failure to Wear a Seat Belt D. Failure of Motorcyclist to Wear a Helmet E. Evidence of Alcohol or Drug Intoxication F. Testimony of Investigating Police Officer G. Expert Testimony H. Collateral Source I. Recorded Statements J. Prior Convictions K. Driving History L. Fatigue M. Spoliation

Settlement

A. Offer of Judgment B. Liens C. Minor Settlement D. Negotiating Directly With Attorneys E. Confidentiality Agreements F. Releases G. Voidable Releases

Transportation Law A. State DOT Regulatory Requirements B. State Speed Limits C. Overview of State CDL Requirements

Insurance Issues

A. State Minimum Limits of Financial Responsibility B. Uninsured Motorist Coverage C. No Fault Insurance D. Disclosure of Limits and Layers of Coverage E. Unfair Claims Practices F. Bad Faith Claims G. Coverage - Duty of Insured H. Fellow Employee Exclusions

Overview of the State of New Hampshire Court System

A. Trial Courts The superior court shall take cognizance of civil actions and pleas, real, personal and mixed, according to the course of the common law, except such actions as are required to be brought in the district courts under RSA 502-A or the probate courts under RSA 547; of writs of mandamus and quo warrantor and of proceedings in relation thereto; of actions for support for children of unwed parents; of petition and appeals relating to highways and property taken therefore and for other public use; of actions commenced in the probate or district courts where a right to jury trial is guaranteed by the constitution; of actions commenced in a district court which are transferable by statute to the superior court; of suits in equity under RSA 498:1; of petitions of divorce, nullity of

marriage, alimony, custody of children and allowance to wife from husband's property for support of herself and children; of petitions for new trials; of petitions for the redemption and foreclosure of mortgages; of all other proceedings and matters to be entered in, or heard at, said court by special provisions of law; and of all other proceedings and matters cognizable therein for which other special provision is not made. RSA § 491:7. District Courts have “original and exclusive jurisdiction of civil cases in which the damages claimed do not exceed $1,500.” RSA § 502-A:14. The concurrent jurisdiction of the District Court is defined as:

All district courts shall have concurrent jurisdiction with the superior court of civil actions for damages in which the damages claimed do not exceed $25,000, the title to real estate is not involved and the plaintiff or defendant resides within the district where such court is located. In all such actions, unless trial by jury is claimed as provided in RSA 502-A:15, the parties shall be heard by the justice, associate justice or special justice, who shall make findings of fact which shall be final. Questions of law may be transferred to the supreme court in the same manner as from the superior court.

RSA § 502-A:14(II); see also RSA 502-A:14(III) (allowing transfer from District to Superior court under defined circumstances). In cases where a right to jury trial is guaranteed by the constitution or by statute, the plaintiff must file the action in the superior court. RSA § 547:11-d. Where the defendant desires a jury trial, the defendant shall indicate the request for a jury trial at the time of the defendant’s initial pleading. Id. Twelve (12) jurors must determine the parties’ rights in a civil suit pursuant to the New Hampshire Constitution. Opinion of the Justices, 41 N.H. 550, 552 (N.H. 1859) (“[W]e are of opinion that no body of less than twelve men, though they should be by law denominated a jury, would be a jury within the meaning of the constitution; nor would a trial by such a body, though called a trial by jury, be such, within the meaning of that instrument.”); see also Opinion of the Justices, 121 N.H. 480, 483 (1981) (reaffirming 1859 opinion); Copp v. Henniker, 55 N.H. 179, 187 (N.H. 1875); N.H. Const. pt. 1, art. 15. Actions brought in the Superior Court are controlled by the Rules of the Superior Court. There are no separate Rules of Civil Procedure. N.H. R. Super. Ct. 1, et seq. The District Court likewise has its own rules. N.H. R. D. Ct. 1, seq. Mediation/ADR New Hampshire Superior Court Rule 170 addresses the types of proceedings subject to mandatory alternative dispute resolution as follows: (A) Cases for Alternative Dispute Resolution.

(1) All writs of summons, transfers of actions from the district court, and such equity cases as the court may deem or the parties may agree are suitable, shall be assigned to ADR, with the exception of those exempted in paragraph (2). (2) The following categories of civil and equity actions are exempt from the requirements of this rule.

(a) Actions by or against or appeals taken from decisions of the state, counties, or municipalities (including their subdivisions, departments, agencies, boards, and agents), except where the action contains a claim for personal injury or monetary damages, unless the parties agree to ADR and the court approves. (b) Actions where the parties represent by joint motion that they have engaged in formal ADR before a neutral third party prior to suit being filed. (c) Actions exempted by the court on motion and for good cause, but only when said motion is filed within 180 days of the return date.

N.H. R. Super. Ct. 107. The rule also provides detailed procedures related to the conduct and reporting of alternative dispute resolution in those cases where it is deemed mandatory. Cases in the New Hampshire District Court are subject to voluntary mediation. N.H. D. Ct. R. 3.28. In addition, cases pending in the New Hampshire Supreme Court may be referred to mediation. N.H. S. Ct. R. 12-A. New Hampshire has not adopted the Uniform Mediation Act.

B. Appellate Courts The New Hampshire Supreme Court is the sole appellate court in the State of New Hampshire. It hears appeals from “the superior court, the probate court, and the district courts . . . .” New Hampshire Supreme Court Rule 4. The supreme court shall accept mandatory appeals for review on the merits. New Hampshire Supreme Court Rule 3. A mandatory appeal is an appeal “filed by the State pursuant to RSA 606:10, or an appeal from a final decision on the merits…that it in compliance with these rules. Id. A mandatory appeal shall be filed by the moving party within 30 days after the entry of the judgment or order appealed from unless a shorter time is provided for by law. New Hampshire Supreme Court Rule 7. Procedural

A. Venue “Transitory actions, in which any one of the parties is an inhabitant of the state, shall be brought in the county or judicial district thereof where some one of them resides. If no one of the parties is an inhabitant of the state, the action may be brought in any county or judicial district.” RSA 507:9. Specific to the District court, “[a]ctions shall be returnable to the district court of the judicial district where either plaintiff or defendant

resides.” RSA 502-A:16 “The superior court may change the venue in any civil proceeding when justice or convenience requires it.” RSA § 507:11.

B. Statute of Limitations 1. BODILY INJURY / PROPERTY DAMAGE CLAIMS

RSA § 508:4 sets forth the statute of limitations for all personal actions, subject to other provisions of law. State v. Lake Winnipesaukee Resort, 159 N.H. 42, 48 (N.H. 2009). 508:4(I) states that all personal actions, except actions for slander or libel, may be brought only within three years of the act or omission complained of. In situations where “the injury and its causal relationship to the act or omission were not discovered and could not reasonably have been discovered at the time of the act or omission, the action shall be commence within 3 years of the time the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the injury and its causal relationship to the act or omission complained of.” Pursuant to this “discovery rule” the statute of limitations does not begin to run until the plaintiff (1) knew or reasonably should have known that he or she had been injured, and (2) knew or reasonably should have known that his or her injury was proximately caused by conduct of the defendant. Big League Entm’t, Inc. v. Brox Indus., Inc., 821 A.2d 1054, 1058 (N.H. 2003).

2. WRONGFUL DEATH

Wrongful death actions are governed by the general three year statute of limitations found in RSA § 508:4, which governs all personal actions. See Cheever v. Southern N.H. Reg’l Med. Ctr., 688 A.2d 565 (N.H. 1997)

RSA § 556:11, under New Hampshire’s probate code, states that if an “action is not then pending, one may be brought for such cause at any time within six years after the death of the deceased party, subject to the provisions of RSA § 508.”

The six-year limitations period referenced in RSA § 556:11 is subject to the provisions of RSA § 508:4, which mandates a three year statute of limitations period for wrongful death actions. Cheever at 567.

3. BREACH OF CONTRACT / BAD FAITH CLAIMS

Breach of contract claims are governed by the general statute of limitation contained in RSA § 508:4, which governs all personal actions. RSA § 508:4(I), places a three year limitation on actions concerning a breach of contract. A & B Lumber Co., LLC v. Vrusho, 871 A.2d 64 (N.H. 2005). The “discovery rule” found in RSA § 508:4(I) is applicable to breach of contract claims. Black Bear Lodge v. Trillium Corp., 620 A.2d 428 (N.H. 1993). The limitations period may be tolled by a “direct and unqualified admission” of liability for “an unpaid debt that the party is then willing to pay.” A&B Lumber at 66. The determination of whether a cause of action is based in tort or contract is controlled by the substance of the action and not the form. Roberts v. Richard & Sons, Inc., 304

A.2d 364 (N.H. 1973) (superseded by statute on other grounds); Wood v. Greaves, 876 A.2d 241 (N.H. 2005).

A. Subrogation

A party’s right to subrogation can arise either by contract, statute, or common law or equitable principle. Wolters v. Am. Republic Ins. Co., 827 A.2d 197 (N.H. 2003). “The doctrine of subrogation presupposes the payment of a debt by a party secondarily liable therefore, who thereby acquires an equitable right to be reimbursed by the principal debtor and for the purpose of making this right effective is invested with all the rights which the creditor had against him (the principal debtor).” DeLellis v. Burke, 598 A.2d 203, 205 (N.H. 1999) (emphasis omitted).

B. Contribution

RSA § 507:7-f (Contribution Among Tortfeasors) provides: I. Except as provided in paragraph II, a right of contribution exists between or among 2 or more persons who are jointly and severally liable upon the same indivisible claim, or otherwise liable for the same injury, death or harm, whether or not judgment has been recovered against all or any of them. Except as provided in RSA § 507:7-g, I and IV, the right of contribution may be enforced only by a separate action brought for that purpose. The basis for contribution is each person’s share of the obligation, including the proportionate share of the claimant at fault as determined in accordance with the provisions of RSA § 507:7-e. No right of contribution exists against a person who is immune to the claim which would otherwise give rise to a right of contribution. No right of contribution exists against the claimant at fault. II. Contribution is not available to a person who enters into a settlement with a claimant unless the settlement extinguishes the liability of the person from whom contribution is sought, and then only to the extent that the amount paid in settlement was reasonable.

RSA § 507:7-g (Enforcement of Contribution) provides:

I. If the proportionate fault of the parties to a claim for contribution has been established as provided in RSA 507:7-e, a party paying more than its proportionate share of the obligation may recover judgment for contribution upon motion in the same action, or by separate action. II. If the proportionate fault of the parties to the claim for contribution has not been established, contribution may be enforced in a separate action, whether or not a judgment has been rendered against either the person seeking contribution or the person from whom contribution is being sought.

III. If a judgment has been rendered, the action for contribution must be commenced within one year after the judgment becomes final. If no judgment has been rendered, the person bringing the action for contribution must have either (a) discharged by payment the common liability within the period of the statute of limitations applicable to the claimant’s right of action against that person and commenced the action for contribution within one year after payment, or (b) agreed while action was pending to discharge the common liability and, within one year after the agreement, have paid liability and commenced an action for contribution. IV. All such claims for contribution shall be resolved by arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof except as follows: (a) A party seeking contribution by separate action may at the outset elect to have the contribution action heard in a court of competent jurisdiction by filing an action in court; or (b) A party against whom contribution is sought in a separate action may, within 60 days of receiving notice by certified mail of a demand for arbitration, elect to have the contribution action heard by a court of competent jurisdiction. Such election shall be made by notice by regular mail to the party seeking contribution or his counsel. (c) Notwithstanding the foregoing, if and only if the plaintiff in the principal action agrees, a defendant seeking contribution may bring an action in contribution prior to the resolution of the plaintiff’s principal action, and such action shall be consolidated for all purposes with the principal action.

C. Wrongful Discharge

To establish a wrongful discharge claim, a plaintiff must allege and prove that: (1) the termination of employment was motivated by bad faith, retaliation or malice; and (2) that she was terminated for performing an act that public policy would encourage or for refusing to do something that public policy would condemn. Karch v. BayBank FSB, 794 A.2d 763, 147 N.H. 525 (2002). However, “As a general rule, any claim based upon negligence by an employer or co-employee for personal injuries arising out of or in the course of employment is barred by [New Hampshire Workers Compensation statutes].” Id. at 770, 147 N.H. at 530.

C. Time for Filing An Answer Special pleas and brief statements shall be filed within thirty (30) days of the return date. New Hampshire Superior Court Rule 28. Failure to plead affirmative defenses, including the statute of limitations, within this time will constitute waiver of such defenses. Id.

D. Dismissal Re-Filing of Suit RSA § 508:10 provides:

If judgment is rendered against the plaintiff in an action brought within the time limited therefor, or upon a writ of error thereon, and the right of action is not barred by the judgment, a new action may be brought thereon in one year after the judgment. Liability

A. Negligence In general, negligence is the failure to exercise ordinary care under the circumstances. To prevail on a claim for negligence, a plaintiff must show that the defendant breached a duty of care that it owed to the plaintiff and that the breach proximately caused the plaintiff’s injury. Carignan v. N.H. Int’l Speedway, Inc., 151 N.H. 409, 413, 858 A.2d 536 (2004). The existence of a duty is a question of law. Id. The general rule in New Hampshire is that an individual has no duty to protect another from the criminal acts of third parties. See Marquay v. Eno, 139 N.H. 708, 716, 662 A.2d 272 (1995). A duty may arise, however, if a special relationship exists. Id.

Negligence Per Se The negligence per se doctrine may define the standard of conduct to which a defendant will be held as that conduct required by the particular statute. The test applied to determine whether a “statutory standard of conduct may be offered in a particular case asks: “(1) whether the injured person is a member of the class intended by the legislature to be protected, and (2) whether the harm is of the kind which the statute was intended to prevent.” Mahan v. N. H. Department of Admin. Servs., 693 A.2d 79 (N.H. 1997); see also Struffolino v. McCoy, 2005 U.S. Dist. LEXIS 14158 (D.N.H. 2005). However, “[b]efore a statutory duty replaces the reasonable person standard in a negligence cause of action, [the court] must first determine whether the common law recognizes liability for a similar failure to act. Snierson v. Scruton, 761 A.2d 1046, 1051 (N.H. 2000). Comparative Negligence

New Hampshire does not have a pure comparative fault system, instead it allows recovery on an “‘equal fault basis’ as long as the plaintiff’s negligence was not the primary cause of the accident.” Weldy v. Kingston, 514 A.2d 1257 (N.H. 1986). The comparative fault statute is found in RSA § 507:7-d. Under this section, the comparative negligence of a plaintiff bars recovery only if it is greater than that of the defendant. Otherwise, the damage award is diminished in proportion to the percentage of the negligence attributed to the plaintiff. Forsberg v. Volkswagen of Am., Inc., 769 F.Supp. 33 (D.N.H. 1990). Emergency Doctrine New Hampshire also recognizes an emergency doctrine. The doctrine cannot be invoked by one that has created or contributed to the emergency situation. In addition, the existence of a sudden emergency is not a separate defense, but rather an additional circumstance considered when evaluating whether due care has been exercised. In order for an instruction to be warranted, there must be evidence which would support

the finding that: “(1) a sudden and unforeseen emergency situation actually existed; (2) the situation was not created by the negligence of the person seeking the instruction; and (3) the person seeking application of the doctrine had alternative courses of action available and chose, if not the wisest course of action, one which a reasonably prudent person under such circumstances might have taken.” Gagnon v. Crane, 498 A.2d 718, 721 (N.H. 1985); Breagy v. Stark, 642 A.2d 329, 334 (N.H. 1994). The “instinctive action doctrine”, similar to the emergency doctrine, “operates to relieve the actor of responsibility for his actions when through no fault of his own an emergency leaves no time for thought, so that he must act instinctively...” Remillard v. New England Tel. Co., 115 N.H. 702, 704, 349 A.2d 588, 590 (N.H. 1975) (quoting Allen v. State, 110 N.H. 42, 47, 260 A.2d 454, 458 (1969)) (internal quotations omitted). The instinctive action doctrine, “recognizes that decisions made by instinct or reflex action cannot be said to be imprudent where time is allowed for nothing more.” Id. (citing Collette v. Railroad, 83 N.H. 210, 217, 140 A. 176, 181 (1928)). A caveat, approved as part of a jury instruction in London v. Perreault, is:

[A person] may still be found to be negligent for what he does or fails to do while acting in the emergency, but the fact that he was acting under the stress of emergency is a factor or circumstance to be considered in determining whether he was negligent. Where, however, an emergency not due to his own negligence leaves no time for thought, so that he must act instinctively, he cannot be held responsible for what he does under such circumstances, unless he is shown to be unfit to act in such an emergency.

118 N.H. 392, 397, 387 A.2d 342, 345-346 (1978). The giving of a pure unavoidable accident instruction is not within the discretion of the trial court. It is to be accounted reversible error to give it. Dyer v. Herb Prout & Co., 498 A.2d 715 (N.H. 1985). Negligent Infliction of Emotional Distress A claim for negligent infliction of emotional distress to bystanders “must satisfy three prongs: (1) causal negligence of the defendant; (2) forseeability; and (3) serious mental and emotional harm accompanied by objective physical symptoms.” St. Onge v. MacDonald, 917 A.2d 233, 235 (N.H. 2007). The foreseeability criterion requires the court to determine “(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.” Id. at 235. There must be a direct emotional impact which is contemporaneous with the accident. Wilder v. City of Keene, 557 A.2d 636 (N.H. 1989).

In determining what constitutes a “close relationship,” the relationship between unmarried cohabitants has been considered. When evaluating whether such a relationship constitutes a close relationship, courts should take into account the “duration of the relationship, the degree of mutual dependence, the extent of common contributions to a life together, the extent and quality of shared experience, and . . . whether the plaintiff and the injured person were members of the same household, their emotional reliance on each other, the particulars of their day to day relationship, and the manner in which they related to each other in attending to life’s mundane requirements.” Graves v. Estabrook, 818 A.2d 1255 (N.H. 2003); see also St. Onge at 236-237 (plaintiff who dated decedent for “five or six months” not “closely related” to decedent). The harm suffered has to be significant; recovery is not permitted for being upset, dismayed, humiliated or angry. There have to be physical consequences from the mental and emotional harm which are susceptible to objective medical determination. Corso v. Merrill, 406 A.2d 300 (N.H. 1979).

B. Negligence Defenses

Standard Defenses that Should be Raised Comparative negligence, independent, intervening cause, assumption of risk, and failure to mitigate are standard defenses.

Any Special Defenses to a Particular Type of Lawsuit Under the New Hampshire Rules of Civil Procedure, failure to plead affirmative defenses within 30 days following the return date of the writ will constitute waiver of such defenses. N.H. Super. Ct. R. 28.

C. Gross Negligence, Recklessness, Willful and Wanton Conduct 1. Recklessness

“‘[R]ecklessness’ involves conduct evincing “disregard of or indifference to consequences under circumstances involving danger to life or safety of others, although no harm was intended” Migdal v. Stamp, 132 N.H. 171, 176 (N.H. 1989) (quoting Black’s Law Dictionary 1142-43 (5th ed. 1979)). The New Hampshire Criminal Code provides:

A person acts recklessly with respect to a material element of an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the circumstances known to him, its disregard constitutes a gross deviation from the conduct that a law-abiding person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of having voluntarily engaged in intoxication or hypnosis also acts recklessly with respect thereto.

RSA § 626:2(II)(c); see also State v. Hull, 149 N.H. 706, 716 (N.H. 2003) (State could have used “evidence of the defendant’s intoxication to prove recklessness” in criminal prosecution).

2. Willful and Wanton Conduct Allegations that defendants were “aware of the fact that their minor son had ransacked and vandalized their home, was suffering from mental and emotional instabilities and exhibited dangerous propensities, [but] nevertheless failed to seek recommended medical treatment for him and allowed him access to an array of firearms and ammunition,” are “sufficient to establish a claim of reckless or wanton conduct.” Migdal v. Stamp, 132 N.H. 171, 176 (N.H. 1989)

D. Negligent Hiring and Retention

The basis of a claim of negligent employment or supervision is not a case of vicarious liability, like in the case of respondeat superior. Rather, under New Hampshire law, claims of negligent hiring, training and supervision implicate direct liability. Cutter v. Town of Farmington, 498 A.2d 316 (N.H. 1985); see also Trahan-Laroche v. Lockheed Sanders, Inc., 657 A.2d 417 (N.H. 1995).

A cause of action against an employer exists for negligently hiring or retaining an employee that the employer “knew or should have known was unfit for the job so as to create a danger of harm to third persons.” Marquay v. Eno, 662 A.2d 272, 280 (N.H. 1995). The plaintiff is required to establish “some causal connection between the plaintiff’s injury and the fact of employment.” Id. For example, there is a causal connection where the employer has brought an employee into contact or association with a third party and the employer knows or should know the employee is peculiarly likely to commit intentional misconduct. Id.; see also Berry v. Watchtower Bible & Tract Soc’y of N.Y., Inc., 152 N.H. 407, 413, 879 A.2d 1124, 1129 (2005) (distinguishing claim from that in Marquay because there was “no allegation that [employee]’s alleged abusive acts took place on congregation property or during congregation-related activities.”).

E. Negligent Entrustment Negligent entrustment and respondeat superior are not mutually exclusive theories. Burley v. Hudson, 448 A.2d 375 (N.H. 1982).

F. Dram Shop Third parties who suffer damage as a result of negligent or reckless service of adult beverages to an individual may bring an action under RSA § 507-F. No claims may be filed by the intoxicated individual (if over 21 when served), unless reckless conduct is alleged. RSA § 507-F:2. A defendant may be liable for negligently serving alcohol to a minor, or to a intoxicated individual, if the server knows or if a reasonable and prudent person in similar circumstances would know that the individual being served is a minor or intoxicated. RSA § 507-F:4. A defendant may be liable for recklessly serving alcohol to a minor or intoxicated person when a defendant intentionally serves alcoholic

beverages to a person when the server knows, or a reasonable person in his position should have known, that such service creates an unreasonable risk of physical harm to the drinker or to others that is substantially greater than that which is necessary to make his conduct negligent. RSA § 507-F:5. Service of alcoholic beverages is not negligent or reckless if the defendant, at the time of service, is adhering to responsible business practices. RSA § 507-F:6. Responsible business practices are those business policies, procedures, and actions which an ordinarily prudent person would follow in like circumstances. RSA § 507-F:6. RSA § 507-F provides the exclusive remedy against servers fro claims by those suffering damages based on the servers’ service of adult beverages.

G. Joint and Several Liability RSA § 507:7-h establishes that the release of one joint tortfeasor is not presumed to be a release of all joint tortfeasors. Waters v. Hedberg, 496 A.2d 333 (N.H. 1985). RSA § 507:7-h (Effect of Release or Covenant Not to Sue) provides: A release or covenant not to sue given in good faith to one of two or more persons liable in tort for the same injury discharges that person in accordance with its terms and from all liability for contribution, but it does not discharge any other person liable upon the same claim unless its terms expressly so provide. However, it reduces the claim of the releasing person against other persons by the amount of the consideration paid for the release. RSA § 507:7-i (Inadmissible Evidence; Post Verdict Procedure) provides: Evidence of a settlement with, or the giving of a release or covenant not to sue, one or more persons liable for the same injury shall not be introduced in evidence in a trial by jury of an action against another person to recover damages for the same injury. However, upon return of a verdict for the plaintiff by the jury in any such trial, the court shall inquire of counsel the amount of consideration paid for any such settlement, release, or covenant not to sue, and shall reduce the plaintiff’s verdict by that amount.

H. Wrongful Death and/or Survival Actions An action for recovery of damages for wrongful death is a purely statutory creation. According to RSA § 556:14, the wrongful death action is exclusively for the benefit of the decedent’s estate. In re Estate of Infant Fontaine, 519 A.2d 227 (N.H. 1986). Under RSA § 556:12, wrongful death actions are brought by the decedent’s administrator or executor. Both personal actions and survival actions are dependent upon the rights of the deceased. Cheever v. S.N.H. Reg’l Med. Ctr., 688 A.2d 565, 591 (N.H. 1997). Although a wrongful death action is vested in an administrator upon the decedent’s death, the losses at issue are those of the decedent’s losses. Id.

I. Vicarious Liability An employer can be held vicariously liable for the tortious acts of its employee if the employee was acting within the scope of his or her employment at the time of the tortious acts. Conduct is considered being within the scope of employment if: “(a) it is of

the kind he or she is employed to perform; (b) it occurs substantially within the authorized time and space limits; and (c) it is actuated, at least in part, by a purpose to serve the master.” Pierson v. Hubbard, 802 A.2d 1162 (N.H. 2002); Porter v. City of Manchester, 921 A.2d 393, 397-398 (N.H. 2007). Moreover, an employer may be also vicariously liable for an intentional tort of its employee acting within the scope of his or her employment. Id. at 400. If an employee is sent upon a specific errand, using his or her own car but with the knowledge and permission of the employer, and it is agreed that the employee is acting within the scope of his or her employment at the time of the accident, the employer is liable for the acts whether or not the employer had control of the employees detailed operation of the motor vehicle. Hunter v. R.G. Watkins, 265 A.2d 15 (N.H. 1970).

J. Exclusivity of Workers’ Compensation Under New Hampshire’s Workers’ Compensation Law, an employee is entitled to compensation for “accidental injury or death arising out of and in the course of employment. RSA § 281-A:2. Absent some recognized exception to this rule, an employee “may not bring a separate tort action against her employer.” Karch v. Baybank FSB, 147 N.H. 525, 530 (N.H. 2002). New Hampshire’s Workers’ Compensation Law “expressly provides that an employee . . . waives the right to bring such a separate action in exchange for the acceptance of benefits.” RSA § 281-A:8, I(a). “Under the Workers’ Compensation Law, ‘employer’ is defined as ‘a person, partnership, association, corporation, or legal representative of a person, partnership, association or corporation, who employs one or more persons . . . ." RSA § 281:2, I. Swiezynski v. Civiello, 126 N.H. 142, 144 (N.H. 1985). The law “defines an ‘employee’ in relevant part as ‘any person in the service of an employer under any express or implied, oral or written contract of hire . . . .” Appeal of Jenks, 158 N.H. 174, 177 (N.H. 2008) (quoting RSA 281-A:2, VI(a)). The “statute does not define ‘contract of hire,’ [however New Hampshire Courts] have previously held that in order to establish a contract of hire, the claimant must have received or expected to receive payment of some kind.” Id. (Internal citation and punctuation omitted.) New Hampshire employers have “a nondelegable duty to maintain a safe workplace.” Lawyers Title Ins. Corp. v. Groff, 148 N.H. 333, 338 (N.H. 2002). With respect to vehicle insurance policies, when the policy holder is an employer and both victim and tortfeasor are employees, the employer’s vehicle insurance policy does not provide liability coverage if the accident occurred in the course of their employment. Trombley v. Liberty Mut. Ins. Co., 148 N.H. 748, 753 (N.H. 2002) citing RSA § 259:61 (1993). “Nor is the policy statutorily required to do so, because the injured employee would be fully compensated for his or her injuries under the Workers’ Compensation Act.” Id. Conversely, an employer’s vehicle coverage is applicable in the event that “its employee injures a third party in an accident involving the employer's covered vehicle.” Id.

New Hampshire’s Worker’s Compensation Law is “construe[d] liberally . . . in order to give the broadest reasonable effect to its remedial purpose.” Appeal of Cote, 139 N.H. 575, 578, 660 A.2d 1090 (1995) (citation omitted). In “construing the statute, [courts] resolve all reasonable doubts in favor of the injured worker.” An injured worker’s compensation is based upon the worker’s degree of impairment and his or her average weekly wage prior to the accident. RSA § 281-A:29. Damages

A. Statutory Caps on Damages Statutory caps on noneconomic damages in personal injury actions have been held unconstitutional. Brannigan v. Usitalo, 134 N.H. 50, 587 A.2d 1232 (1991).

B. Compensatory Damages for Bodily Injury a. Loss of Consortium An award for loss of consortium compensates a victim’s spouse for loss of services, society and sexual rights. Bennett v. Lembo, 761 A.2d 494 (N.H. 2000). RSA § 507:8-a governs actions for loss of consortium and states that either the husband or wife is entitled to recover such damages whether caused intentionally or by negligent interference. The statute, however, provides for the reduction of such damage award when fault on the part of the claimant or claimant’s spouse is found to have caused, in whole or in part, the injury to the spouse on which the claim is based. The diminution in the damage award is governed by RSA § 507:7-d. Loss of consortium is a consequential derivative of the original insured’s injuries and therefore is limited by the original insured’s coverage. Brouillard v. Prudential Prop. & Cas. Ins. Co., 693 A.2d 63 (N.H. 1997). b. Loss of Familial Relationship “[W]here the decedent is a parent of a minor child or children, the trier of fact may award damages to such child or children for the loss of familial relationship, whether caused intentionally or by negligent interference; where the decedent is a minor child with a surviving parent or parents, the trier of fact may award damages to such parent or parents for the loss of familial relationship, whether caused intentionally or by negligent interference.” Loss of familial relationship includes “the loss of the comfort, society, affection, guidance, and companionship of the deceased.” RSA § 556:12(III). “[L]ike loss of consortium, loss of familial relationship is a consequential damage derivative of the original underlying bodily injury,” and therefore “does not trigger a separate and additional per person bodily injury limit under” an insurance policy. Guilfoy v. United Services Auto. Ass’n, 898 A.2d 502, 505 (N.H. 2006).

c. Loss of Earning Capacity Damages for loss of capacity to earn are recoverable in actions of tort for personal injuries. The trier of fact may consider evidence that tends to show that as a result of the injury, the plaintiff’s ability to earn money in the future has been impaired or diminished. Mathematical certainty is not required, but the plaintiff must demonstrate the impairment of capacity to earn with reasonable certainty or reasonable probability, and adduce

evidence which will allow the jury to arrive at pecuniary value of the loss. Vachon v. New England Towing, Inc., 809 A.2d 771 (N.H. 2002).

d. Loss of Enjoyment of Life Loss of enjoyment of life damages connote the “deprivation of certain pleasurable sensations and enjoyment through impairment or destruction of the capacity to engage in activities formerly enjoyed by the insured plaintiff.” Such damages are consistent with the underlying purpose of compensatory damages, which is to make the plaintiff whole again, and are recoverable under New Hampshire law. In addition, damages for loss of enjoyment of life are a component of permanent impairment. Bennett v. Lembo, 761 A.2d 494 (N.H. 2000).

e. Medical Expenses An injured plaintiff may recover damages for reasonable medical expenses incurred because of the injury suffered. Holyoke v. Grand Trunk Ry., 48 N.H. 541 (1869).

f. Jury Reduction for Comparative Negligence According to RSA § 507:7-d, a plaintiff’s verdict is reduced by the full amount of the plaintiff’s fault, rather than having the jury assess a plaintiff’s fault only in relation to a particular defendant. Kathios v. GMC, 862 F.2d 944 (1st Cir. 1988).

C. Collateral Source Under the collateral source rule if a plaintiff is compensated in whole or in part for his damages by some source independent of the tortfeasor he is still permitted to make full recovery against him. Moulton v. Groveton Papers Co., 114 N.H. 505, 509, 323 A.2d 906, 909 (1974). The rule that collateral benefits are not subtracted from the plaintiff's recovery has been applied to benefits paid under an insurance policy or by a relief association; employment benefits; gratuitous payments; social legislation benefits such as social security, welfare, pensions; and benefits received under certain retirement acts. Id.

D. Pre-Judgment/Post judgment Interest RSA § 524:1-a (Interest to be Added) provides:

In the absence of a demand prior to the institution of suit, in any action on a debt or account stated or where liquidated damages are sought, interest shall commence to run from the time of the institution of suit. This statute shall be inapplicable where the party to be charged pays the money into the court in accordance with the rules of the superior court.

RSA § 524:1-b (Interest from the Date of Writ) provides:

In all other civil proceedings at law or in equity in which a verdict is rendered or a finding is made for pecuniary damages to any party, whether for personal injuries, for wrongful death, for consequential damages, for damage to property, business or reputation, for any other type of loss for which damages are recognized, there shall be added forthwith by the clerk of court to the amount of damages interest thereon from the date of the writ or the filing of the petition to

the date of judgment even though such interest brings the amount of the judgment beyond the maximum liability imposed by law.

Under RSA § 524:1-a, a plaintiff who prevails in an action for debt or account is entitled to pre-judgment and post-judgment interest from the commencement of the suit until the defendant makes payment. Nault v. N & L Dev. Co., 767 A.2d 406 (N.H. 2001).

Courts may award post-judgment interest to prevailing parties in all civil proceedings at law or in equity. RSA § 524:1-b limits the award of pre-judgment interest to interest which accrues until the entry of a verdict or finding. Prevailing parties may not be awarded interest from the time a verdict or finding is rendered until the time when the clerk of court enters judgment. Nault at 409.

An insurer may be obligated to pay costs or interest on judgment recovered against the insured although these items may bring the total payment beyond the limits set in the policy. Powell v. T.A. & C. Taxi, 188 A.2d 654 (N.H. 1963).

E. Damages for Emotional Distress

To recover for emotional distress under a traditional negligence theory, we have consistently required plaintiffs to demonstrate physical symptoms of their distress regardless of physical impact. O'Donnell v. HCA Health Services of New Hampshire, Inc., 152 N.H. 608, 611, 883 A.2d 319, 324 (2005)

F. Wrongful Death and/or Survival Action Damages RSA § 556:12 (Damages for Wrongful Death, Elements) provides:

I. If the administrator of the deceased party is plaintiff, and the death of such party was caused by the injury complained of in the action, the mental and physical pain suffered by the deceased in consequence of the injury, the reasonable expenses occasioned to the estate by the injury, the probable duration of life but for the injury, and the capacity to earn money during the deceased party’s probable working life, may be considered as elements of damage in connection with other elements allowed by law, in the same manner as if the deceased had survived.

II. In addition, the trier of fact may award damages to a surviving spouse of the decedent for the loss of the comfort, society, and companionship of the deceased; however, where fault on the part of the decedent or the surviving spouse is found to have caused, in whole or in part, the loss complained of, damages recoverable shall be subject to diminution to the extent and in the manner provided for in RSA 507:7-d. In no event shall damages awarded under this paragraph exceed $150,000.

III. In addition, where the decedent is a parent of a minor child or children, the trier of fact may award damages to such child or children for the loss of

familial relationship, whether caused intentionally or by negligent interference; where the decedent is a minor child with a surviving parent or parents, the trier of fact may award damages to such parent or parents for the loss of familial relationship, whether caused intentionally or by negligent interference. However, where fault on the part of the decedent or the claimant is found to have caused, in whole or in part, the loss complained of, damages recoverable shall be subject to diminution to the extent and in the manner provided for in RSA § 507:7-d. For purposes of this paragraph, loss of familial relationship shall include the loss of the comfort, society, affection, guidance, and companionship of the deceased. In no event shall damages awarded under this paragraph exceed $50,000 per individual claimant.

This section does not allow the recovery of damages based on the loss suffered by surviving relatives. Siciliano v. Capital City Shows, Inc., 475 A.2d 19 (N.H. 1984).

Hedonic damages, also known as loss of life damages, are recoverable under the statute. Marcotte v. Timberlane/Hampstead Sch. Dist., 733 A.2d 394 (N.H. 1999); Bennett v. Lembo, 761 A.2d 494 (N.H. 2000).

Because a wrongful death action is for the benefit of the estate, and not the distributees, RSA § 556:14, the comparative negligence of contributorily negligent beneficiaries is not a relevant consideration in assessing the defendant’s liability. In re Estate of Infant Fontaine, 519 A.2d 227 (N.H. 1986).

RSA § 556:13 (Limitation of Recovery) provides the following:

The damages recoverable in such an action shall not exceed fifty thousand dollars except in cases where the plaintiff’s decedent has left either a widow, widower, child, father, mother, or any relative dependent on the plaintiff’s decedent in which event there shall be no limitation. In the trial of such action the jury shall not be informed of the limitation, if any, imposed by this section and if the jury awards damages in excess of such limitation, the court shall reduce the amount of damages awarded to conform to such limitation.

But see Travato v. Deveau, 736 A.2d 1212 (N.H. 1999) (holding the distinction in § 556:13 between decedents with dependent relatives and those without to be constitutional, but that distinguishing between causally and non-causally related deaths is unconstitutional).

A decedent’s estate may recover damages for any conscious pain and suffering endured by the decedent in anticipation of a fatal accident. Thibeault v. Campbell, 622 A.2d 212 (N.H. 1993).

G. Punitive Damages New Hampshire does not allow a defendant to be punished by being held liable for punitive or exemplary damages. RSA § 507:16 (“No punitive damages shall be

awarded in any action, unless otherwise provided by statute.”). A plaintiff can only be awarded compensatory damages. When the act involved is wanton, malicious, or oppressive, the compensatory damages awarded may reflect the aggravating circumstances. Absent such a showing of ill will, hatred or evil motive on the part of the defendant, the commission of a tort alone will not give rise to “aggravating circumstances” which justify awarding “liberal” compensatory damages. Munson v. Raudonis, 387 A.2d 1174 (N.H. 1978); Figlioli v. R.J. Moreau Co., Inc., 866 A.2d 962 (N.H. 2005). See also Vratsenes v. N.H. Auto, Inc., 289 A.2d 66 (N.H. 1972) (No damages are to be awarded as a punishment to the defendant or as a warning and example to deter him and others from committing like defenses in the future.). While New Hampshire takes a “restrictive” approach to enhanced damage awards, “[e]nhanced compensatory damages are available if the plaintiff alleges and proves that the defendant’s conduct is tortious (cognizable either as an intentional or unintentional tort) and was also wanton, malicious, or oppressive. Minion Inc. v. Burdin, 929 F.Supp. 521, 526 (D.N.H. 1996).

H. Diminution in Value of Damaged Vehicle The proper measure of damages in a negligence claim resulting in property damage includes the difference between the value of the property prior to the damage and the post-damage value. Copadis v. Haymond, 94 N.H. 103, 106 (N.H. 1946) (“As elements of damage, it was proper to introduce evidence of the reasonable cost of the repairs and the loss of use.”). In Copadis (which, despite its age, appears to remain good law in New Hampshire), the court upheld a damages award including both the reduction of value to the automobile defendant negligently damaged and the cost to plaintiff of renting a car while repairs were completed. Copadis at 106. Presented with evidence that 1) the car was worth $500 less after the accident; 2) the repairs cost $458; and 3) plaintiff spent $90 on a rental, the court approved of an award of $590 as “consistent with” the New Hampshire rule on damages and “not excessive.” Id.; see also Couture v. Marquis, 107 N.H. 47, 49, 217 A.2d 175, 176 (1966) (noting “the cost of repair is competent evidence of damage.”).

I. Loss of Use of Motor Vehicle In Copadis v. Haymond, the New Hampshire Supreme Court held that “it was proper to introduce evidence of the reasonable cost of the repairs and the loss of use” As elements of damage. 94 N.H. 103, 106 (N.H. 1946); but see Barker v. Publishers’ Paper Co., 78 N.H. 571, 575, 103 A. 757, 759 (1918) (distinguishing between damages consisting “merely in the deprivation of the use” from “a larger sum because the defendant’s use has injured the property for future use,” in trespass claim). An additional contrast to Copadis was a decision holding that the plaintiff’s cost in continuing to operate his car had to be considered as an offset: entitling plaintiff only to the additional cost resulting from damage to his car. Rogers v. Nelson, 97 N.H. 72, 74, 80 A.2d 391, 393 (1951) (cost of operating car must be subtracted from expense of using train as alternative transportation). Additionally, the New Hampshire court has found that, where a plaintiff proved that the reasonable value of her vehicle was $20 per day but failed to show that she “needed the vehicle or was inconvenienced,” a finding that plaintiff suffered no damages was proper. Gelinas v. Mackey, 123 N.H. 690, 695-696, 465 A.2d 498, 501 (1983).

Evidentiary Issues

A. Preventability Determination New Hampshire Rule of Evidence 407 makes evidence of subsequent remedial measures to prove negligent or culpable conduct inadmissible. However, in order for an act to constitute a subsequent remedial measure, it must be voluntarily undertaken. State v. Elementis Chem., Inc., 887 A.2d 1133 (N.H. 2005).

B. Traffic Citation from Accident Unfair prejudice is inherent in evidence of other similar crimes or prior convictions and the degree of such prejudice is dependent upon the similarity of the other incident to that at issue. State v. Smalley, 855 A.2d 401 (N.H. 2004). RSA § 265:107-a requires children under the age of 18 to wear seat belts or be secured in a child passenger restraint. § 265:107-a, IV specifically provides that any violation of the statute is inadmissible to show contributory negligence in a civil action.

C. Failure to Wear a Seat Belt The accident-causing negligence of another driver is not considered a readily foreseeable danger; therefore, there is no corresponding common law legal duty to guard against it by wearing a seat belt. Evidence of a party’s failure to wear a seat belt is inadmissible to show negligence. Thibeault v. Campbell, 622 A.2d 212, 215 (N.H. 1993); see also Forsberg v. Volkswagen of America, Inc., 769 F. Supp. 33, 36 (D.N.H. 1990). RSA § 265:107-a requires children under the age of 18 to wear seat belts or be secured in a child passenger restraint. § 265:107-a, IV specifically provides that any violation of the statute is inadmissible to show contributory negligence in a civil action.

D. Failure of Motorcyclist to Wear a Helmet New Hampshire law provides that, “No person less than 18 years of age may drive or ride upon a motorcycle unless he wears protective headgear of a type approved by the director.” RSA § 265:122(I). There is no New Hampshire caselaw addressing the admissibility of evidence of a violation of the motorcycle helmet law.

E. Evidence of Alcohol or Drug Intoxication New Hampshire has determined that driving while under the influence of intoxicating liquor is criminal negligence per se. State v. Wong, 486 A.2d 262 (N.H. 1984); State v. Rollins-Ercolino, 821 A.2d 953 (N.H. 2001); see also State v. Polk, 155 N.H. 585, 589, 927 A.2d 514, 518 (2007) (noting “unlike DWI, vehicular assault and driving after suspension are not strict liability crimes.”).

F. Testimony of Investigating Police Officer Rule 702 of the New Hampshire Rules of Evidence provides that, “if scientific, technical, or specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” The “proper focus for the trial court is the reliability of the expert’s methodology or technique.” Goudreault v. Kleeman, 158 N.H. 236, 247 (N.H. 2009).

“The trial court functions only as a gatekeeper, ensuring a methodology's reliability before permitting the fact-finder to determine the weight and credibility to be afforded an expert's testimony.” Id. Law enforcement officers have been permitted to testify as experts in New Hampshire. See, e.g., State v. Santamaria, 145 N.H. 138, 144 (N.H. 2000) (“In light of the officer’s qualifications, it can hardly be said that the trial court abused its discretion in permitting him to testify [as an expert].” “New Hampshire gives opinion evidence a broader scope than other jurisdictions and construes Rule 702 liberally.” Id.

G. Expert Testimony Rule 702 of the New Hampshire Rules of Evidence provides that, “if scientific, technical, or specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” The “proper focus for the trial court is the reliability of the expert’s methodology or technique.” Goudreault v. Kleeman, 158 N.H. 236, 247 (N.H. 2009). “The trial court functions only as a gatekeeper, ensuring a methodology's reliability before permitting the fact-finder to determine the weight and credibility to be afforded an expert's testimony.” Id. Law enforcement officers have been permitted to testify as experts in New Hampshire. See, e.g., State v. Santamaria, 145 N.H. 138, 144 (N.H. 2000) (“In light of the officer’s qualifications, it can hardly be said that the trial court abused its discretion in permitting him to testify [as an expert].” “New Hampshire gives opinion evidence a broader scope than other jurisdictions and construes Rule 702 liberally.” Id.

H. Collateral Source Under the collateral source rule if a plaintiff is compensated in whole or in part for his damages by some source independent of the tortfeasor he is still permitted to make full recovery against him. Moulton v. Groveton Papers Co., 114 N.H. 505, 509, 323 A.2d 906, 909 (1974). The rule that collateral benefits are not subtracted from the plaintiff's recovery has been applied to benefits paid under an insurance policy or by a relief association; employment benefits; gratuitous payments; social legislation benefits such as social security, welfare, pensions; and benefits received under certain retirement acts. Id.

I. Recorded Statements While there is minimal caselaw specifically addressing discoverability of incident related materials in the possession of an insurer, the New Hampshire Supreme Court has held that, “discovery of a statement by an assured to his insurer, such as in this case, should not be denied as a matter of law.” Hartford Acc. & Indem. Co. v. Cutter, 229 A.2d 173, 176 (N.H. 1967) (insured not barred from obtaining copy of his own statement to insurer in discovery). However, an insurer’s records regarding handling of other similar claims are not subject to discovery absent a demonstration of particular relevance to the claim at issue. Ross v. Home Ins. Co., 773 A.2d 654 (N.H. 2001) (other claims files not discoverable for purpose of assisting in ascertaining scope of insurance coverage).

J. Prior Convictions Unfair prejudice is inherent in evidence of other similar crimes or prior convictions and the degree of such prejudice is dependent upon the similarity of the other incident to that at issue. State v. Smalley, 855 A.2d 401 (N.H. 2004).

K. Driving History RSA § 260:14 provides: (a) Proper motor vehicle records shall be kept by the department at its office. Notwithstanding RSA 91-A or any other provision of law to the contrary, except as otherwise provided in this section, such records shall not be public records or open to the inspection of any person. (b) Copies of such records, duly attested and certified by the director, or designee, shall be as competent evidence in any court within this state as the original record or document would be if produced by such person as the legal custodian. A hearings examiner shall be considered a legal custodian of motor vehicle records for the purpose of testifying at a trial

L. Fatigue N.H. Admin. Rules, Saf-C 906.01 provides: (a) Every highway patrol and enforcement officer or other law enforcement agent certified to conduct truck inspections shall be authorized to declare a driver out-of-service upon discovering a violation of the hours of service criteria, as specified in 49 CFR 395, or driver qualifications criteria, as specified in 49 CFR 391.11. (b) A driver or motor carrier shall not require or permit an out-of-service driver to operate a commercial motor vehicle until that driver may do so lawfully. (c) The North American Standard Out-of-Service Criteria (2006 edition) shall be applicable for any violation of this section. With the exception of specific provisions applicable to the transport of hazardous materials, violations of the New Hampshire motor carrier regulations are enforceable pursuant to RSA 262:41 which provides: Unless otherwise herein provided, any person convicted of a violation of any provision of this title, or of any rule made under authority thereof, shall be guilty of a violation for the first offense. For any subsequent offense committed during any calendar year he shall be guilty of a violation if a natural person, or guilty of a misdemeanor if any other person.

M. Spoliation It does not appear that New Hampshire has recognized a separate cause of action for intentional spoliation. See Rodriguez v. Webb, 141 N.H. 177, 181 (N.H. 1996) (assuming without deciding that “the trial court's recognition of intentional spoliation as an independent tort was error”). In the context of an insurer and insured, the New Hampshire Supreme court has analyzed claims alleging a tort of spoliation under the insurer’s duty of good faith and fair dealing. Bennett v. ITT Hartford Group, 150 N.H.

753, 758 (N.H. 2004) (“Because this duty of good faith and fair dealing is independent of the contract, [Plaintiff] would have a cause of action in tort.”) Settlement

A. Offer of Judgment Although New Hampshire does not have a rule regarding offers of judgment similar to Fed. R. Civ. P. 68, a consent decree is an agreement to settle and therefore “encouraged by New Hampshire’s well-established principle of favoring the settlement of litigation.” G2003B, LLC v. Town of Weare, 903 A.2d 1007, 1010 (N.H. 2006).

B. Liens 1. Workers’ Compensation Liens RSA § 281-A:13 (Liability of Third Person) provides:

I. (a) An injured employee, in addition to the benefits of this chapter, may obtain damages or benefits from or proceed at law or otherwise against another person to recover damages or benefits if:

(1) An injury for which compensation is payable under the provisions of this chapter has been sustained; and (2) The circumstances of the injury create in another person a legal liability to pay damages in respect thereto, or a contractual obligation to pay benefits under the uninsured motorist provision of any motor vehicle insurance policy; and (3) The action has not been barred under RSA 281-A:8.

(b) The employer, or the employer’s insurance carrier, shall have a lien on the amount of damages or benefits recovered by the employee, less the expenses and costs of action, to the extent of the compensation, medical, hospital, or other remedial care already paid or agreed or awarded to be paid by the employer, or the employer’s insurance carrier, under this chapter, less the employer’s or the employer’s insurance carrier’s pro rata share of expenses and costs of action as determined in paragraph IV. II. (a) The administrator of an employee’s estate may, in addition to damages or benefits obtained under this section payable to the employee’s dependents, obtain damages or benefits from or proceed at law or otherwise against another person to recover damages or benefits if:

(1) The death of the employee has resulted under circumstances creating in another person a legal liability to pay damages in respect thereto, or a contractual obligation to pay benefits under the uninsured motorist provisions of any motor vehicle insurance policy;

(2) The action has not been barred under RSA 281-A:8; and

(3) Damages or benefits obtained under this section shall be in addition to the benefits of this chapter payable to the employee’s dependents.

(b) The employer, or the employer’s insurance carrier, shall have a lien on the amount of damages or benefits recovered which remain after deduction of such of the expenses itemized in RSA 556:14 as are not paid by the employer or the employer’s insurance carrier, and after deduction of the distributive share of any person to whom nothing is payable under RSA 281-A:26, to the extent of the compensation, medical, hospital, or other remedial care and funeral expenses already paid or agreed or awarded to be paid by the employer, or the employer’s insurance carrier, under this chapter. III. (a) No settlement by an employee or, in case of death, by the administrator of the employee’s estate, of the employee’s or said administrator’s claim for damages or benefits at law or otherwise against such third person shall be binding until approved by the commissioner or, if an action has been brought, by the court or arbitration proceeding in which such action is pending or to which the writ is returnable. The commissioner or the court or the arbitrator, as the case may be, shall make provisions for payment to the employer or the employer’s insurance carrier of the amount of the lien after expenses and costs of action have been paid. (b) (1) In any case in which the employee or, in case of death, the administrator of the employee’s estate neglects to exercise the employee’s right of action by failing to proceed at law or otherwise against such third person for a period of 9 months after the injury, the employer or the employer’s insurance carrier may so proceed and shall be subrogated to the rights of the injured employee or, in case of death, to the rights of the administrator to recover against such third person.

(2) If the employer or the employer’s insurance carrier recovers from such other person damages or benefits, after expenses and costs of action have been paid, in excess of the amount of the lien as defined in this section, then any such excess shall be paid to the injured employee or, in case of death, to the administrator of the employee’s estate for distribution in accordance with the provisions of RSA 556:14.

(c) The procedure for approval of a settlement and for safeguarding the rights of the employee or, in case of death, the rights of the administrator of the employee’s estate in such cases shall be the same as is provided for protecting the rights of the employer or the employer’s insurance carrier in case of a settlement made or an action at law or otherwise brought by the employee or the administrator of the employee’s estate under this section. IV. Whenever there is a recovery against a third person under paragraph I, II, or

III, the commissioner, the arbitrator, or the superior court, as the case may be, shall order such division of expenses and costs of action, including attorneys’ fees, between the employer or the employer’s insurance carrier and the employee as justice may require. V. Whenever the lien created by paragraph I, II, or III is in the state of New Hampshire by virtue of benefits paid to or on behalf of a state employee, the governor and council, upon petition by the injured employee, may, in their discretion, waive all or part of the lien. VI. Any provision in any agreement which requires employers or the employer’s insurance carrier to waive any rights of subrogation granted pursuant to this chapter is hereby prohibited.

Compensation as used in RSA § 281-A:13 includes a permanent injury award; thus, any employer’s insurance carrier has a lien on an employee’s recovery of an award for permanent impairment from a third party. Beaudoin v. Marchand, 665 A.2d 745 (N.H. 1995). 2. Department of Human Services Liens Under RSA § 167:14-a (I), “[a]ny person who is a recipient of financial assistance, medical assistance, old age assistance, aid to the needy blind, medicaid for employed adults with disabilities, or aid to the permanently and totally disabled shall, by his acceptance of such assistance, be deemed to have assigned any claim or right of action against any person or party to the commissioner of health and human services, to the extent that such assistance is furnished. RSA § 164:14-a (IV) further provides:

A disbursement of any award, judgment, or settlement shall not be made to a recipient without the recipient or the recipient’s attorney first providing at least 30-days written notice of any scheduled trial, alternative dispute resolution hearing, or settlement to the commissioner of health and human services that the recipient has a claim which could result in a recovery from a third party or obtaining from the commissioner a written release of any obligation owed to the state for medical assistance provided to the recipient. The commissioner shall notify the recipient or the recipient’s attorney of the amount of the commissioner’s claim within 21 days of the notice. If a dispute arises between the recipient and the commissioner of health and human services as to the settlement of any claim that arises under this section, the third party or the recipient’s attorney shall withhold from disbursement to the recipient or to any legal instrument created for the benefit of the recipient, an amount equal to the commissioner’s claim. Either party may apply to the superior court or the district court in which an action based upon the recipient’s claim could have been commenced for an order to determine an equitable apportionment between the commissioner and the recipient of the amount withheld. An order of apportionment has the effect of a judgment. The

obligation of a third party under this paragraph to withhold all or part of a disbursement is conditional upon the receipt by the third party of written notice from the commissioner, the recipient, or the recipient’s attorney that the commissioner is asserting a claim.

3. Blue Cross/Blue Shield Liens There must be a contractual or statutory right for a health insurer to be entitled to a subrogation lien for benefits paid for medical and hospital expenses; equitable subrogation is not applicable in this context. Wolters v. Am. Republic Ins. Co., 827 A.2d 197 (N.H. 2003). 4. Hospital Liens RSA § 448-A:1 (Right to Lien) provides: Every individual, partnership, firm, association, corporation, institution or any governmental unit or combination or parts thereof maintaining and operating a hospital licensed in the state of New Hampshire which shall furnish medical or other service to any patient injured by reason of an accident not covered by the workers’ compensation act or any home health care provider licensed under RSA 151 who furnishes medical or other services to any patient injured by reason of an accident not covered by the workers’ compensation act shall, if such injured patient shall assert or maintain a claim against another for damages on account of such injuries, have a lien upon that part going or belonging to such patient, or to the person responsible for the payment of such patient’s bills, of any recovery or sum had or collected or to be collected by such patient or by the person responsible for the payment of such patient’s bills, or by his heirs or personal representatives in the case of his death, whether by judgment or by settlement or compromise, to the amount of the reasonable and necessary charges of such hospital or home health care provider for the treatment, care and maintenance of such patient by the hospital or by the home health care provider up to the date of payment of such damages. The provisions of this chapter shall not be applicable to accidents and injuries within the purview of the workers’ compensation law.

C. Minor Settlement With respect to “Settlements on Behalf of Minors or Judgments or Decrees in Favor of Minors,” New Hampshire Law provides:

Settlements, judgments, or decrees of any suit or claim brought on behalf of a minor by a parent or next friend shall be approved by the superior or district court in which the action is pending or to which a writ may be made returnable as follows: I. If the net amount, as defined in RSA 463:2, VI, or the portion thereof, to be paid to the minor while still a minor, exceeds $10,000:

(a) Superior court or district court approval of settlements, including structured settlements, is required. The superior or district court shall require proof in the form of a certified statement from the probate court that the guardian ad litem, parent, next friend, or other person who receives money on behalf of the minor has been appointed guardian of the estate of such minor and is subject to the duties prescribed under RSA 463:19. (b) In the case of a judgment or decree, the superior or district court shall, before making any orders for payment, require proof in the form of a certified statement from the probate court that the guardian ad litem, parent, next friend, or other person who receives money on behalf of the minor has been appointed guardian of the estate of such minor and is subject to the duties prescribed under RSA 463:19. II. For any net amount, as defined in RSA 463:2, VI, which is to be paid to the minor after the minor attains the age of majority: (a) The superior court or district court may require approval, for good cause shown, of settlements, including structured settlements. (b) The superior court or district court may make further orders regarding said distribution for good cause shown in the case of a judgment or decree.

RSA § 464-A:42 (emphasis added). Provisions relating to the appointment of guardians of a minor’s estate are located at RSA § 463:1, et seq. See, e.g., RSA § 463:5 (“Any person may nominate a guardian of the person or of the estate or of both of the person’s minor child in a will, by petition, or by written consent to a petition by another. The judge of probate may, for cause, refuse to appoint a person so nominated.”)

D. Negotiating Directly With Attorneys There are no New Hampshire cases, statutes or regulations that explicitly permit or prohibit direct negotiation between attorneys and claims professionals.

E. Confidentiality Agreements New Hampshire courts have upheld confidentiality agreements that meet the requirements of a general contract. In ACAS Acquisitions (Precitech) Inc. v. Hobert, 155 N.H. 381, 395, 923 A.2d 1076, 1089 (2007), the court applied the three part test applicable to non-competition agreements to uphold a non-disclosure agreement.

F. Releases RSA § 507:7-h establishes that the release of one joint tortfeasor is not presumed to be a release of all joint tortfeasors. Waters v. Hedberg, 496 A.2d 333 (N.H. 1985). RSA § 507:7-h (Effect of Release or Covenant Not to Sue) provides:

A release or covenant not to sue given in good faith to one of two or more persons liable in tort for the same injury discharges that person in accordance with its terms and from all liability for contribution, but it does not discharge any other person liable upon the same claim unless its terms expressly so provide. However, it reduces the claim of the releasing person against other persons by the amount of the consideration paid for the release. RSA § 507:7-i (Inadmissible Evidence; Post Verdict Procedure) provides: Evidence of a settlement with, or the giving of a release or covenant not to sue, one or more persons liable for the same injury shall not be introduced in evidence in a trial by jury of an action against another person to recover damages for the same injury. However, upon return of a verdict for the plaintiff by the jury in any such trial, the court shall inquire of counsel the amount of consideration paid for any such settlement, release, or covenant not to sue, and shall reduce the plaintiff’s verdict by that amount.

G. Voidable Releases New Hampshire has not resolved whether an unrepresented injured individual may unilaterally void a release. Transportation Law

A. State DOT Regulatory Requirements “The commissioner may adopt as rules, under RSA 541-A, the current version of the federal motor carrier safety regulations promulgated by the U.S. Department of Transportation, Federal Highway Administration, Bureau of Motor Carrier Safety, contained in 49 C.F.R. 107, 382, 385-397. RSA 266:72-a (“Notwithstanding the provisions of RSA 541-A, any amendments or additions by the respective federal agencies or their successor agencies shall also amend or supplement the rules adopted by the commissioner of safety without further action on the part of the commissioner.”). New Hampshire has explicitly adopted portions of the Federal Motor Carrier Safety regulations by reference:

(a) The commissioner hereby incorporates the following motor carrier safety regulations promulgated by the United States Department of Transportation, Federal Motor Carrier Safety Administration, Bureau of Motor Carrier Safety:

(1) Pursuant to RSA 266:72-a, 49 CFR 391.31 through 391.49; and (2) Pursuant to RSA 266:72-a, 49 CFR 107, 382, 385 through 397.

(b) The federal regulations incorporated in (a) above shall be applicable to all drivers set forth in Saf-C 901.01.

N.H. Admin. Rules, Saf-C 901.02; see also N.H. Admin. Rules, Saf-C 901.01 (“These rules shall be applicable to all drivers hired by a motor carrier or drivers who operate as owner/operators.”). Moreover, definitions of terms used in the New Hampshire motor carrier rules follow the federal definitions. N.H. Admin. Rules, Saf-C 901.03 (“Any term used in these rules, unless specifically defined, shall have the same meaning as it has in 49 CFR.”).

Among the New Hampshire specific requirements enumerated in the New Hampshire regulations is:

(a) A driver of a motor carrier shall stop his/her vehicle on the request of any highway patrol and enforcement officer or other law enforcement agent certified to conduct truck inspections so that the officer may:

(1) Examine: a. Vehicle components; b. Driver's physical condition; c. Cargo condition; and d. Documents; and

(2) Enter the cab or cargo area as necessary to determine that: a. The vehicle is in safe operating condition; and b. The cargo is properly secured.

(b) Every owner/operator of a motor carrier, or his/her authorized agent, shall submit accounts, books, records, memoranda, correspondence, and other documents for inspection, upon demand by any highway patrol and enforcement officer or other law enforcement agent certified to conduct truck inspections who in the course of enforcing these rules is acting within the scope of his/her duties and authority, at the motor carrier's principal place of business during regular business hours.

N.H. Admin. Rules, Saf-C 903.01. A related provision provides:

(a) Every highway patrol and enforcement officer or other law enforcement agent certified to conduct truck inspections shall be authorized to declare a driver out-of-service upon discovering a violation of the hours of service criteria, as specified in 49 CFR 395, or driver qualifications criteria, as specified in 49 CFR 391.11. (b) A driver or motor carrier shall not require or permit an out-of-service driver to operate a commercial motor vehicle until that driver may do so lawfully. (c) The North American Standard Out-of-Service Criteria (2006 edition) shall be applicable for any violation of this section.

N.H. Admin. Rules, Saf-C 906.01. With the exception of specific provisions applicable to the transport of hazardous materials, violations of the New Hampshire motor carrier regulations are enforceable pursuant to RSA 262:41 which provides:

Unless otherwise herein provided, any person convicted of a violation of any provision of this title, or of any rule made under authority thereof, shall be guilty of a violation for the first offense. For any subsequent offense committed during any calendar year he shall be guilty of a violation if a natural person, or guilty of a misdemeanor if any other person.

B. State Speed Limits

R.S.A. § 265:60

I. No person shall drive a vehicle on a way at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. In every event speed shall be so controlled as may be necessary to avoid colliding with any person, vehicle, or other conveyance on or entering the way in compliance with legal requirements and the duty of all persons to use due care. II. Where no hazard exists that requires lower speed for compliance with RSA 265:60, I, the speed of any vehicle not in excess of the limit specified in this section or established as hereinafter authorized shall be prima facie lawful, but any speed in excess of the limit specified in this section or established as hereinafter authorized shall be prima facie evidence that the speed is not reasonable or prudent and that it is unlawful:

(a) In a posted school zone, at a speed of 10 miles per hour below the usual posted limit from 45 minutes prior to each school opening until each school opening and from each school closing until 45 minutes after each school closing. (b) 30 miles per hour in any business or urban residence district as defined in RSA 259:118; (c) 35 miles per hour in any rural residence district as defined in RSA 259:93, and on any class V highway outside the compact part of any city or town as defined in RSA 229:5, IV; (d) 55 miles per hour in other locations, except as provided in (e); (e) 65 miles an hour on the interstate system, the central New Hampshire turnpike and the eastern New Hampshire turnpike in locations where said highways are 4-lane divided highways or other divided highways of 4 or more lanes. (f) On a portion of a highway where officers or employees of the agency having jurisdiction of the same, or any contractor of the agency or their employees, are at work on the roadway or so close thereto as to be endangered by passing traffic, at a speed of 10 miles per hour below the usual posted limit, but in no case greater than 45 miles per hour. The speed shall be displayed on signs as required by RSA 265:6-a. (g) For a vehicle equipped with a transponder, 25 miles per hour through a toll booth or gate that is equipped with a transponder reader for automated toll collection except for an open road tolling lane and except that at toll booths staffed by toll collectors drivers whose

vehicles are not equipped for automated tolling shall come to a full stop at the toll booth so that the attendant may collect the toll. (h) In the toll collection area of an open road tolling lane, at a speed greater than is reasonable and prudent for the conditions and actual and potential hazards existing at the time or greater than a per se maximum speed of 65 miles per hour, whichever is less.

III. The limits specified in subparagraphs II(e) and II(g) shall be the maximum lawful speed and no person shall drive a vehicle on said ways at a speed in excess of such maximum limit. The prima facie speed limits set forth in this section may be altered as authorized in RSA 265:62. IV. The driver of every vehicle shall, consistent with requirements of paragraph I, drive at an appropriate reduced speed when approaching and crossing an intersection or railway grade crossing, when approaching and going around a curve, when approaching a hillcrest, when traveling upon any narrow or winding roadway, and when special hazard exists with respect to pedestrians or other traffic by reason of weather or highway conditions. V. The fines for violation of subparagraphs II(a)-(d) shall be as follows: Miles per hour above the limit specified: 1-10 $50 11-15 75 16-20 100 21-25 200 26+ Must appear (Minimum $350) VI. The fines for violations of subparagraph II(e) shall be as follows: Miles above the 65 mph limit: 1-5 $65 6-10 100 11-15 150 16-20 250 21-25 350

26+ Must appear

C. Overview of State CDL Requirements Requirements related to Commercial Drivers’ Licenses in New Hampshire appear at R.S.A. § 263:82 et seq. Selected provisions include: “No person who drives a commercial motor vehicle shall have more than one driver's license.” R.S.A. § 263:83

Any driver of a commercial motor vehicle is obligated to notify the state and employers of convictions of violations state laws or local ordinances relating to motor vehicle traffic control. R.S.A. § 263:84 No employer may knowingly allow, permit or authorize a driver to drive a commercial motor vehicle during any period in which the driver’s license is suspended, revoked, or cancelled, in which the driver has lost the privilege to drive a commercial motor vehicle in a state or has been disqualified from driving a commercial motor vehicle, or in which the driver has more than one driver license. R.S.A. § 263:85. Specifying testing requirements and waiver eligibility for a commercial drivers’ license. R.S.A. § 263:87 R.S.A. § 263:100 provides:

Notwithstanding any law to the contrary, a person may drive a commercial motor vehicle: if the person has a commercial driver license issued by any state or province or territory of Canada, in accordance with the minimum federal standards for the issuance of commercial motor vehicle driver licenses; if the commercial driver license of the person is not suspended, revoked, or cancelled; and if the person is not disqualified from driving a commercial motor vehicle.

R.S.A. § 263:94 provides, in part, I. A person is disqualified from driving a commercial motor vehicle for a period of not less than one year if a report has been received by the department of:

(a) A conviction within this or any other jurisdiction of driving a motor vehicle under the influence of alcohol or any drug; (b) A conviction within this or any other jurisdiction of driving a commercial motor vehicle while the alcohol concentration in the person's system is 0.04 or more, or driving a noncommercial motor vehicle while the alcohol concentration in the person's system is 0.08 or more, or is 0.02 or more if the person is under age 21 as determined by testing methods approved by law in this state or any other state or jurisdiction; (c) A first conviction within this or any other jurisdiction of leaving the scene of an accident involving a motor vehicle driven by the person; (d) A first conviction within this or any other jurisdiction of using a motor vehicle in the commission of a felony; (e) A first instance of refusing to submit to a test or tests under the implied consent laws in this or any other jurisdiction to determine the driver's alcohol concentration or the presence of any drug while driving a motor vehicle;

(f) A first conviction within this or any other jurisdiction of driving a commercial motor vehicle when, as a result of prior violations committed while operating a commercial motor vehicle, the driver's commercial driver license is revoked, suspended, or canceled, or the driver is disqualified from operating a commercial motor vehicle; or (g) A first conviction within this or any other jurisdiction of causing a fatality through the negligent operation of a commercial motor vehicle, including but not limited to the crimes of vehicular homicide and negligent homicide.

Other provisions relating to obtaining commercial drivers’ licenses appear at R.S.A. §§ 263:27 (minimum age 18); 263:25 (exception for learning to drive commercial vehicle); 263:97 (addressing reports to state agencies and third parties of “the conviction of any resident or nonresident holder of a commercial driver license of any violation of state law or local ordinance relating to motor vehicle traffic control, other than parking violations, committed in a commercial motor vehicle”). Insurance Issues

A. State Minimum Limits of Financial Responsibility New Hampshire does not require every motor vehicle to be insured, or even, in some cases, proof of financial responsibility prior to the operation of the vehicle. Proof of financial responsibility is required only in the event of certain circumstances. Progressive N. Ins. Co. v. Enterprise Rent-A-Car Co. of Boston, Inc., 821 A.2d 991 (N.H. 2003).

RSA § 264:2 (Proof Required Upon Conviction for Motor Vehicle Law Violations) provides:

I. Upon receipt of an abstract of the record in case of conviction of any person for one of the following offenses, the director may suspend the license of the person so convicted and the registration certificates of any motor vehicle, trailer, or semi-trailer registered in the name of such person and require the surrender of the registration plates of any such vehicle, unless and until such person gives and thereafter maintains proof of his financial responsibility in the future:

(a) Driving a motor vehicle while under the influence of intoxicating liquor or narcotic drugs; (b) Failing to stop and report when involved in an accident; (c) Homicide or assault arising out of the driving of a motor vehicle; (d) The second time for driving a vehicle at an excessive rate of speed; (e) The second time for driving a vehicle in a reckless manner and a violation of such other of the provisions of any state law relative to vehicles as the director shall determine.

II. The department may take action as required in this section upon receiving proper evidence of any such conviction of any person in another state. Notice of suspension and of the requirement of such surrender shall be sent by the department to such driver not less than 10 days prior to the effective date of suspension.

RSA § 264:3 (When Proof Required After Report of Accident) provides:

I. After receipt of the report required by RSA § 264:25, the director shall suspend the license and registration certificate and require the surrender of the registration plates, if any, of the driver, and shall suspend the registration certificates and require the surrender of the plates of the owner of the vehicle, trailer, or semi-trailer involved in the accident reported and shall suspend his license, if any, or driving privilege until such driver or owner or both shall have furnished sufficient security to satisfy any judgment or judgments for damages resulting from such accident as may be recovered against such owner or driver by or on behalf of the aggrieved person or his legal representative, and until such owner or driver or both shall give and thereafter maintain proof of financial responsibility in the future. Notice of such suspension and of the requirement of such surrender shall be sent by the director to such driver and owner not less than 10 days prior to the effective date of such suspension.

II. This section shall not apply:

(a) To such owner or driver if such owner had in effect at the time of such accident with respect to such vehicle a motor vehicle liability policy or motor vehicle liability bond, as herein defined; (b) To such driver, if not the owner of such vehicle, if there was in effect at the time of such accident such a policy or bond with respect to his driving of vehicles not owned by him; (c) To such owner or driver if the liability of such owner or driver for the damages resulting from such accident is, in the judgment of the director, covered by any other form of insurance policy or bond, or proof of financial responsibility in accordance with RSA § 264:20 and 21.

III. Where erroneous information with respect to insurance coverage of the owner or driver of any such vehicle is furnished to the department, it shall take appropriate action as above provided after the receipt by it of correct information with respect to such coverage.

IV. Within 15 days after the receipt of notice of such accident from the department, the insurance carrier or surety company which issued such policy shall notify the department in such manner as it may require in case such policy was not in effect at the time of such accident. If no such notification is received within such 15 days, the director may assume that such a policy was in effect at the time of the accident.

V. In case any such driver or owner has no license to drive a vehicle or no vehicle registered in his name in this state, he shall not be allowed a license or registration until he has complied with this chapter to the same extent as would be necessary if he had held a driver’s license and a vehicle registration at the time of the accident.

VI. No such policy shall be effective under this section unless issued by an insurance company or surety company authorized to do business in this state, except that such policy may be accepted from an insurance company or surety company not authorized to do business in this state if such company possesses capital and assets to the extent and of the quality required under the provisions of RSA § 405:2 or 4, as determined by the insurance commissioner of this state and such company shall execute a power of attorney authorizing the director to accept service on its behalf of notice or process in any action involving such policy arising out of such accident; provided, however, every such policy shall provide the same degree of security as required by this chapter.

VII. Notwithstanding the provisions of RSA § 264:5 or any determination previously made by the director under this section, the director, upon receipt of satisfactory evidence that there is an unsatisfied judgment against any owner or driver required by RSA § 264:25 to report an accident which judgment was rendered in an action for damages to property or for personal injuries arising out of said accident, shall, until said owner or driver or both shall have satisfied said judgment to the extent required by RSA § 264:8, suspend the license and driving privilege and registration certificates and require the surrender of the registration plates, if any, of said driver and owner.

RSA § 264:20 (Amount of Proof of Financial Responsibility) provides:

Proof of financial responsibility shall mean proof of ability to respond in damages for any liability thereafter incurred, as a result of accidents which occur in New Hampshire, arising out of the ownership, maintenance, control, or use of a motor vehicle, trailer, or semi-trailer in the amount of $25,000 because of bodily injury or death to any one person; and subject to said limit respecting one person, in the amount of $50,000 because of bodily injury to or death to 2 or more persons in any one accident, and in the amount of $25,000 because of injury to and destruction of property in any one accident. Whenever required under this chapter such proof in such amounts shall be furnished for each motor vehicle, trailer or semi-trailer registered by such person.

1. Proof of Financial Responsibility May Be Given by the Following Methods

RSA § 264:21 (Methods of Giving Proof of Financial Responsibility) provides:

Proof of financial responsibility when required under this chapter may be given by either of the following methods:

I. By filing with the department a certificate, as defined in RSA § 259, of an insurance company or of a surety company to satisfy any judgment or judgments for damages resulting from an accident reported to the director under the provisions of RSA § 264:26. Financial responsibility in the future may be given by filing with the department a continuous certificate which shall be a certificate as defined in RSA § 259, of an insurance company or of a surety company, to provide the amount of proof of financial responsibility required under the provisions of RSA § 264:20. Every continuous certificate shall remain in effect no less than 20 days after written notice is received by the director that said continuous certificate shall be cancelled, except that a certificate subsequently filed shall, on its effective date, terminate a certificate previously filed with respect to any other vehicle designated in both certificates. Whenever another vehicle replaces a vehicle described in a continuous certificate such continuous certificate covering such described vehicle shall apply automatically to such other vehicle registered by the insured as of the date of its registration to the insured and for the period, if any, not exceeding 10 days prior to such registration when said vehicle is driven on temporary plates and for a period of 15 days after the date of registration, unless said 20-day period after written notice of cancellation is received by the director has theretofore expired. Such continuous certificate shall likewise apply automatically to any additional vehicle acquired by the insured as of the date of its registration to the insured and for the period, if any, not exceeding 10 days prior to such registration when such vehicle is driven on temporary plates and for a period of 15 days after the date of registration, unless said 20-day period after written notice of cancellation is received by the director has theretofore expired; provided, however, that the insurance company or surety company insures all vehicles owned by the named insured at such date of registration, and that such continuous certificate shall apply to such additional vehicle only to the extent the insurance is applicable to all such previously owned vehicles;

II. By the deposit of money or securities as provided in the following section; or

III. By satisfying the director that any corporation has financial ability to comply with the requirements of this chapter.

RSA § 264:22 (Money or Securities Deposited as Proof) provides:

A person may give proof of financial responsibility by delivering to the department a receipt of the state treasurer showing the deposit with him of money in the amount, or securities approved by him of a market value in the amount, required for coverage in a motor vehicle liability policy furnished by the person giving such proof under this chapter. Such securities shall be of a type which may legally be purchased by savings banks or for trust funds. All money or securities so

deposited shall be subject to execution to satisfy any judgment mentioned in this chapter but shall not otherwise be subject to attachment or execution.

RSA § 264:24 (May Substitute Other Proof) provides:

The director shall cancel any bond or return any certificate of insurance, or he shall direct the state treasurer to return any money or securities, to the person entitled thereto upon the substitution and acceptance of other adequate proof of financial responsibility pursuant to this chapter.

B. Uninsured Motorist Coverage An employee is not barred from collecting benefits from the employer’s uninsured/underinsured motorist insurer. Such recovery does not upset the “fundamental quid pro quo” upon which the Workers’ Compensation Law, RSA § 281-A, is based. Hull v. Town of Plymouth, 143 N.H. 381, 384, 724 A.2d 1291, 1293 (N.H. 1999). An employee receiving uninsured motorist benefits including compensation, medical, hospital or other remedial care already paid or agreed or awarded to be paid under the Workers’ Compensation Law is recovering a double recovery. Pursuant to RSA § 281-A:13, I an employer can be granted a workers’ compensation lien on uninsured motorist benefits. This section preserves an employee’s right to pursue such a claim and to keep from the award anything not covered by the workers’ compensation lien. Rooney v. Fireman’s Fund Ins. Co., 645 A.2d 52 (N.H. 1994). RSA 264:15 provides: I. No policy shall be issued under the provisions of RSA 264:14, with respect to a vehicle registered or principally garaged in this state, unless coverage is provided therein or supplemental thereto at least in amounts or limits prescribed for bodily injury or death for a liability policy under this chapter, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or drivers of uninsured motor vehicles, and hit-and-run vehicles because of bodily injury, sickness, or disease, including death resulting therefrom. When an insured elects to purchase liability insurance in an amount greater than the minimum coverage required by RSA 259:61, the insured's uninsured motorist coverage shall automatically be equal to the liability coverage elected. For the purposes of this paragraph umbrella or excess policies that provide excess limits to policies described in RSA 259:61 shall also provide uninsured motorist coverage equal to the limits of liability purchased, unless the named insured rejects such coverage in writing. Rejection of such coverage by a named insured shall constitute a rejection of coverage by all insureds, shall apply to all vehicles then or thereafter eligible to be covered under the policy, and shall remain effective upon policy amendment or renewal, unless the named insured requests such coverage in writing.

C. No Fault Insurance New Hampshire is an “at-fault” state when it comes to auto accidents.

D. Disclosure of Limits and Layers of Coverage

As a general rule the existence of insurance in the ordinary tort case is not a matter for inquiry on deposition or discovery. Durocher’s Ice Cream, Inc. v. Peirce Const. Co., 106 N.H. 293 (N.H. 1965); Hardware Mut. Cas. Co. v. Hopkins, 196 A.2d 66 (N.H. 1963).

E. Unfair Claims Practices New Hampshire’s RSA § 417:4 defines what constitutes an unfair method, act or practice. RSA 417:6 requires the insurance commissioner to issue a notice of hearing “whenever the commissioner shall have reason to believe that any person engaged in the business of insurance in this State has been engaged or is engaging in any unfair method of competition or any unfair or deceptive act or practice defined in RSA 417:4, and that a proceeding by the commissioner in respect thereto would be to the public interest.” In re Bennett (N.H. Ins. Dep't), 151 N.H. 130, 133 (N.H. 2004).

Subsection XV is entitled Unfair Claim Settlement Practices by Insurers and reads as follows:

(a) Any of the following acts by an insurer, if committed without just cause and not merely inadvertently or accidentally, shall constitute unfair claim settlement practices:

(1) Knowingly misrepresenting to claimants or insured’s pertinent facts or policy provisions relating to coverages at issue; (2) Failing to acknowledge and act promptly upon communications with respect to claims arising under insurance policies; (3) Failing to adopt and implement reasonable standards for the prompt investigation of claims arising under insurance policies; (4) Not attempting in good faith to effectuate prompt, fair and equitable settlements or compromises of claims in which liability has become reasonably clear; (5) Compelling claimants to institute litigation to recover amounts due under insurance policies by offering substantially less than the amounts ultimately recovered in actions brought by them; (6) Adopting or making known to insureds or claimants a policy of appealing from arbitration awards in favor of insureds or claimants for the purpose of compelling them to accept settlements or compromises less than the amount awarded in arbitration; (7) Attempting settlement or compromise of a claim on the basis of an application which was altered without notice to, or knowledge or consent of the insured; (8) Attempting to settle or compromise a claim for less than the amount which the insured had been led to believe the insured was entitled to by written or printed advertising material accompanying or made part of an application; (9) Attempting to delay the investigation or payment of claims by requiring an insured and the insured’s physician to submit a preliminary claim report and then requiring the subsequent submission of formal proof of loss

forms, both of which submissions contain substantially the same information; (10) Making any claim payment not accompanied by a statement setting forth the benefits included within the claim payment; (11) Failing to affirm or deny coverage of claims within a reasonable time after proof of loss forms have been submitted; (12) Refusing payment of a claim solely on the basis of an insured’s request to do so without making an independent evaluation of the insured’s liability based upon all available information; (13) Failure of an insurer to maintain a complete record of all complaints which it has received, whether or not they were deemed valid, the time it took to process the complaint, and the disposition thereof and file an annual report thereof with the insurance department. (14) Knowingly underestimating the value of any claim by an insurer or by an adjuster representing the insurer.

(b) Evidence as to numbers and types of complaints to the insurance department against an insurer, and said department’s complaint experience with other insurers writing similar lines of insurance, shall be admissible in evidence in an administrative or judicial proceeding brought under this title, provided that no insurer shall be deemed in violation of this section solely by reason of the numbers and types of such complaints.

F. Bad Faith Claims

Whether or not an insurer has acted in bad faith is a question of fact. Certain Underwriters at Lloyd’s London v. Home Ins. Co., 783 A.2d 238 (N.H. 2001). “If a [reinsured] has implemented routine practices and controls to ensure notification to reinsurers but inadvertence causes a lapse, the reinsured has not acted in bad faith. But if a [reinsured] does not implement such practices and controls, then it has willfully disregarded the risk to reinsurers and is guilty of gross negligence. A reinsurer, dependent on its [reinsured] for information, should be able to expect at least this level of protection, and, if a [reinsured] fails to provide it, the reinsurer’s late loss notice defense should succeed.” Id. at 241 (quoting Unigard Sec. Ins. Co. v. North River Ins. Co., 4 F.3d 1049, 1069 (2d Cir. 1993)).

An insurer has a duty of reasonable care in the settlement of a third-party liability claim, thus giving rise to a potential action in tort. However, allegations of an insurer’s wrongful refusal to settle or delay in settling a first-party claim does not state a cause of action in tort. Bennett v. ITT Hartford Group, Inc., 846 A.2d 560 (N.H. 2004); Bell v. Liberty Mut. Ins. Co., 776 A.2d 1260 (N.H. 2001) (refusing to recognize a tort claim for bad faith delay or refusal to settle a first-party insurance claim). When an individual is forced to seek “judicial assistance to secure a clearly defined and established right, which should have been freely enjoyed without such intervention, an

award of counsel fees on the basis of bad faith is appropriate.” It is a question for the jury to decide whether the insured’s delay was in bad faith. An insurer is not allowed to delay payment “to coerce the insured into accepting less than full performance of the insurer’s contractual obligation.” Drop Anchor Realty Trust v. Hartford Fire Ins. Co., 126 N.H. 674, 680, 496 A.2d 339, 343 (N.H. 1985).

G. Coverage – Duty of Insured New Hampshire courts have enforced insurance provisions obligating an insured to provide prompt notice to an insurer of an accident. See, e.g., Sutton Mut. Ins. Co. v. Notre Dame Arena, 108 N.H. 437, 439 (N.H. 1968). (“This is a reasonable and valid stipulation which must be complied with by the insured in order to obligate the insurer to defend and pay under the terms of its policy.”) “A material and substantial breach of this provision by the insured destroys its right to claim indemnity under the policy.” Id., citing Glens Falls &c. Co. v. Keliher, 88 N. H. 253, 258; American Employers Ins. Co. v. Sterling, 101 N. H. 434; Lumbermens Casualty Co. v. Stamell Constr. Co., 105 N. H. 28; 6 Williston, Contracts (Jaeger ed.) ss. 812, 813. New Hampshire Courts interpret an insurance clause requiring that notice of the accident be given 'as soon as practicable' “to call for notice to be given within a reasonable time in view of all the facts and circumstances of each particular case. Sutton Mut. Ins. Co. v. Notre Dame Arena, 108 N.H. 437, 439 (N.H. 1968).

H. Fellow Employee Exclusions When the employer is the policyholder and both the victim and the tortfeasor are its employees, the employer's liability policy does not provide liability coverage for an employee injuring another employee in the course of their employment. Nor is the policy statutorily required to do so, because the injured employee would be fully compensated for his or her injuries under the Workers' Compensation Act. Trombley v. Liberty Mut. Ins. Co., 148 N.H. 748, 753, 813 A.2d 1202, 1206 (2002)