STATUTE OF LIMITATIONS
- Personal Property3 YearsN.H. Rev. Stat. Ann. § 508:4(I)
- Personal Injury/Death3 YearsN.H. Rev. Stat. Ann. § 508:4(I)
- Breach of Contract/Written3/20 YearsN.H. Stat. § 508:4(I) or 508:5
- Breach of Contract/Oral3 YearsN.H. Stat. § 508:4(I)
- Breach of Contract/Sale of Goods4 YearsN.H. Stat. § 382-A:2-725
- Statute of Repose/Products12 YearsN.H. Rev. Stat. Ann. § 507:D:2*
- Statute of Repose/Real Property8 YearsN.H. Rev. Stat. Ann. § 508: 4-b**
- Breach of Warranty/U.C.C.4 YearsN.H. Rev. Stat. Ann. § 382-A:2-725
- Workers’ Compensation3 YearsN.H. Rev. Sat. Ann. § 281-A:13
- Strict Product Liability3 YearsN.H. Rev. Stat. Ann. § 508:4(I)
Statute of Limitations Exceptions
*12 Years statute of repose under. N.H. Rev. Stat. Ann. § 507-D:2 found to be unconstitutional under Heath v. Sears, Roebuck & Co., 123 N.H. 512 (1983).
**8 Years from substantial completion of improvement to real property. N.H. Rev. Stat. Ann. § 508: 4-b.
Contributory Negligence/Comparative Fault
Modified Comparative Fault: 51% Bar. Damaged party cannot recover if it is 51% or more at fault. If 50% or less at fault, it can recover, although its recovery is reduced by its degree of fault. Plaintiff’s recovery will be barred if his fault is greater than defendant’s fault, and if not, his damages can still be reduced by his portion of negligence. N.H. Rev. Stat. Ann. § 507:7(d).
Med Pay/PIP Subrogation
Med Pay: No. Subrogation prohibited by statute. N.H. Rev. Stat. Ann. § 264:17.
The three (3) year personal injury statute of limitations runs from the date of the insured’s accident. N.H. Rev. Stat. Ann. § 508:4 (1997).
PIP: Coverage not applicable. First-party Med Pay coverage available instead.
Automobile and Property: No applicable statute, Administrative Code provision or case law exists.
Made Whole Doctrine
The Made Whole Doctrine has at least been applied to health insurance subrogation. Health insurers may not subrogate where the Plan beneficiary is not made whole from the third-party recovery. Dimick v. Lewis, 497 A.2d 1221 (N.H. 1985). It should also be noted that where there is a valid subrogation clause in an insurance policy involving an injured minor and a parent, the health insurer is subrogated to the parent’s right to recover medical expenses. BlueCross & BlueShield of New Hampshire-Vermont v. St. Cyr, 459 A.2d 226 (N.H. 1983). Where there is a reduced recovery, such as a policy limits third-party settlement, the respective shares allocated to the parent and the minor should bear the same proportions to the total settlement that the full loss of each would have borne to a complete recovery. Dimick, supra. There is no justification for treating a settlement within policy limits, however, as a reduced recovery. When the enforceability of the settlement is not in question, there is no reason to assume that a plaintiff who settles for less than the defendant’s policy limits has acted irrationally in choosing not to test the value of his claim by litigating his case to a verdict. Roy v. Ducmuigeem, 532 A.2d 1388 (N.H. 1987). Such a settlement within policy limits is presumed to cover the insured’s medical expenses. Id.
Economic Loss Doctrine
Intermediate Rule (implied warranty claims only). When a defective product accidentally causes harm to persons or property, the resulting harm is treated as personal injury or property damage; when damages occurs only to an inferior product itself, through deterioration or non-accidental causes, harm is characterized as “economic loss.” Ellis v. Robert C. Morris, Inc., 513 A.2d 951 (N.H. 1986). Despite absence of privity of contract, subsequent purchasers of real property are entitled to sue a builder or contractor on the theory of implied warranty of workmanlike quality for latent defects that cause economic loss, so long as latent defects become manifest after the purchase of the property and would not have been discoverable had reasonable inspection of structure been made prior to purchase. Lemke v. Dagenais, 547 A.2d 290 (N.H. 1988). Recovery of economic losses in implied warranty claims, even without privity, for defective products is allowed.
New Hampshire follows the “Sutton Rule” (see Oklahoma). A landlord’s insurer may not pursue a tenant for any damages caused by the tenant’s negligence because the tenant is considered an implied co-insured. Cambridge Mutual Fire Ins. Co. v. Crete, 846 A.2d 521 (N.H. 2004). In addition, a landlord may not pursue the tenant for uninsured losses it sustains.
Adverse Inference: An adverse inference – that the missing evidence would have been unfavorable – can be drawn only when the evidence was destroyed deliberately with a fraudulent intent. Rodriguez v. Webb, 141 N.H. 177, 180, 680 A.2d 604 (N.H. 1996). The timing of the document destruction is not dispositive on the issue of intent, however, and an adverse inference can be drawn even when the evidence is destroyed prior to a claim being made. Id. at 178, 180, 680 A.2d 604; Murray v. Developmental Services of Sullivan County, Inc., 149 N.H. 264, 271, 818 A.2d 302, 309 (N.H. 2003). Of particular importance when considering the appropriateness of spoliation sanctions are the prejudice to the non-offending party and the degree of fault of the offending party. Collazo-Santiago v. Toyota Motor Corp., 149 F.3d 23, 28 (1st Cir. 1998). Bad faith is not essential to imposing a spoliation sanctions, but you must show at least carelessness and you must show prejudice. MMG Ins. Co. v. Samsung Electronics Am., Inc., 2013 WL 1637139 (D.N.H. 2013).
Property Damage. Liability imposed on parents when a child vandalizes real or personal property and the parents fail or neglect to supervise child, or to control the conduct of child. N.H. Rev. Stat. Ann. § 507:8-e.
There is no limit to liability. Child must be under 18-years-old.
Modified Joint and Several Liability. Joint and several liability for defendants more than 50% at fault, for other defendants with less than 50% fault, several liability. N.H. Rev. Stat. Ann § 507:7-e. Joint and several always when defendants found to be acting in concert. Gouldreault v. Kleeman, 965 A.2d 1040 (N.H. 2009).
Whether or not the proportionate fault of the parties has been established, contribution actions may be enforced in a separate action, even if a judgment has not been rendered against the person seeking contribution or the person from whom contribution is being sought. N.H. Rev. Stat. Ann § 507:7-e; Pike Industries v. Hiltz Construction, 718 A.2d 236 (N.H. 1998). There is a one year statute of limitations from the date of final judgment, if applicable. Alternatively, if there is no final judgment, contribution plaintiff must discharge common liability within statute of limitations of underlying action and then has one year to file contribution action.
Suspension of Drivers' Licenses
Administrative Suspension: Failure to comply results in the suspension of the driver’s license/registration certificate, surrender of registration plates, and suspension of the owner’s registration certificates, plates and license. Effective 7/24/18, the DMV is authorized to order periodic payments as security after an accident resulting in death, injury, or property damage. N.H. Rev. Stat. Ann. § 264:3. Suspension will remain in effect until the uninsured driver has obtained a satisfaction of a judgment, release or a judgment in his favor. N.H. Rev. Stat. Ann. § 264:7.
Judgment: The Division shall suspend the license and driving privilege and registration certificates and require the surrender of the registration plates, if any, of said driver and owner. License will be suspended if defendant fails to pay penalty/fine associated with a conviction of any offense. N.H. Rev. Stat. Ann. § 263:56-a. The judgment stays until satisfied. N.H. Rev. Stat. Ann. § 263:56-a.
Contact Information: New Hampshire Department of Safety, Division of Motor Vehicles, Driver Licensing, 23 Hazen Drive, Concord, NH 03305, (603) 227-4020, http://www.nh.gov/safety/divisions/dmv/driver-licensing/index.htm.
Prohibits Additional Insureds. Applies to Indemnification Agreements. N.H. Rev. Stat. §§ 338-A:1; 338-A:2.
Diminution of Value
First Party: Currently no applicable New Hampshire court decisions can be found regarding recovery allowed for diminution in value in a first-party claim.
Third Party: No court decisions regarding recovery allowed for diminution in value of a damaged vehicle in a third-party claim.
All-Party Consent: It is unlawful to record or disclose the contents of any electronic or in-person communication without the consent of all parties. N.H. Rev. Stat. Ann. § 570-A:2(I-a).
The New Hampshire Supreme Court held that an individual efficaciously consented to the recording of a communication when surrounding circumstances demonstrate that they knew said communication was being recorded. New Hampshire v. Locke, 761 A.2d 376 (N.H. 1999).
A New Hampshire court can award restitution in an amount they determine appropriate, regardless of a criminal defendant’s ability to pay. N.H. Rev. Stat. Ann. § 651:62(I). The applicable statute also defines a “victim” as one who has suffered an economic loss as a result of the criminal conduct, and case law supports that an insurer can recover restitution payments as long as it is subrogated to the rights of its insured/“victim.” State v. McCarthy, 839 A.2d 22 (N.H. 2003).
Health and Disability Insurance
Statute of Limitations: 3 Years. N.H. Rev. Stat. Ann. § 508:4(I).
Subrogation of Medical and Disability Benefits are allowed. Wolters v. American Republic Ins. Co., 823 A.2d 197 (N.H. 2003). Made Whole does not apply. Dimick v. Lewis, 497 A.2d 1221 (N.H. 1985) (insurer entitled to pro-rata share); Roy v. Ducnuigeen, 532 A.2d 1388 (1987) (full reimbursement). Common Fund applies. Lutkus v. Lutkus, 692 A.2d 958 (N.H. 1997).
Funeral Procession Traffic Laws
New Hampshire law requires the operator of the lead escort vehicle to comply with all stop signs and traffic control signals. When the lead vehicle has entered an intersection lawfully, the other vehicles may proceed without regard to the traffic signal. Funeral processions have the right-of-way. All vehicles in the procession must follow one another as closely as safely possible and should be marked with funeral flags or windshield signs, headlights and taillights lit, and hazard flashers. The escort vehicle must have a purple flashing or emergency light. N.H. Rev. Stat. Ann. § 265:156.
Statute of Limitations: 3 Years. N.H. Rev. Sat. Ann. § 281-A:13.
Can Carrier Sue Third Party Directly: Yes, after 9 months.
Recovery from UM/UIM Benefits: Yes.
Subrogation Against Medical Malpractice: Undecided.
Subrogation Against Legal Malpractice: Undecided.
Recovery Allocation/Equitable Limitations: The lien is reimbursed off the top, less any fees owed.
Employer Contribution/Negligence: No.
Attorney’s Fees/Costs: “As Justice May Require”. A carrier may recover fees. Fees/costs owed on past and future benefits.
Future Credit: Yes.
Auto No-Fault: No.
Dog Bite Laws
Dog owner will not only be held strictly liable for all physical damages caused by their dog, but also for any mischievous acts which causes injury. N.H. Rev. Stat. Ann. § 466:19.
Employee Leasing Laws
An employee leasing company must be certified by the insurance commissioner to meet certain criteria. If it does, it’s considered the employer of the leased employee under the Employee Leasing Company Act. The employee leasing company and client company are both entitled to protection under the Exclusive Remedy Rule. N.H. Rev. Stat. Ann. § 277-B:9 and 10.
Condominium Waiver of Subrogation Laws
Associations must maintain master casualty policy for common areas. However, nothing in the statute requires a waiver of subrogation. N.H. Rev. Stat. Ann. § 356-B:43.
Automobile Total Loss Thresholds
Percentage of Value: 75%
Cost for vehicle repair is 75% or more of its fair market value prior to being damaged. N.H. Rev. Stat. Ann. § 261:22(VI)(b).
Sudden Medical Emergencies While Driving
Emergency Doctrine. There must be evidence that the defendant was called on to take immediate action to meet dangers of a sudden and unexpected occurrence, which he was not responsible for creating. Bonenfant v. Hamel, 73 A.2d 125 (N.H. 1950).
Sufficient evidence of a driver blacking out included favorable weather and road conditions, lack of evasive actions such as braking or swerving, and defendant having no memory of the accident. Frechette v. Welch, 621 F.2d 11 (1st Cir. 1980).
State Sovereign Immunity And Tort Liability
Tort Claims Act: Claims Against the State. N.H. Rev. Stat. Ann. §§ 541-B:1 through 541-B:23 (1985).
Notice Deadlines: Suit against State must be commenced within three years. Written notice must be presented to the agency within 180 days of the injury. N.H. Rev. Stat. Ann. § 541-B:14.
Claims/Actions Allowed: State generally waives its immunity. Claims made against the State for less than $5,000 are to be heard by the Board of Claims for the State. Any claim against the State in excess of $5,000 shall be heard by the Superior Court. N.H. Rev. Stat. Ann. § 541-B:2, § 541-B:9, § 541-B:9-a. A claim against the State for the negligent use of a motor vehicle is allowed since the State has purchased insurance. State v. Brosseau, 470 A.2d 869 (1983).
Comments/Exceptions: State does not waive its immunity for claims involving:
(1) the exercise of a legislative or judicial function;
(2) an act or omission of a State employee, or official when exercising due care in the execution of any statute;
(3) discretionary function; and
(4) an intentional tort, assault, libel, slander, misrepresentation.
N.H. Rev. Stat. Ann. § 541-B:19.
Damage Caps: All claims arising out of single incident shall be limited to an award not to exceed $475,000 per claimant and $3,750,000 per any single incident, or the proceeds from any insurance policy, whichever amount is greater. The State will not pay punitive damages. N.H. Rev. Stat. Ann. § 541-B:14.
Recovery of Sales Tax After Vehicle Total Loss
First-Party Claims: No state sales tax. No applicable statute, case law, or regulation governing recovery of sales tax. N.H. A.D.C. Ins. § 1002.15 describes how to determine reimbursement for total loss claims but does not speak on the topic of sales tax.
Third-Party Claims: No applicable statute, case law, or regulation governing recovery of sales tax.
Damage to Property Without Market Value
Service Value: In the absence of market value to determine the measure of damages for personal property lost, converted, or injured, it has frequently been held that the actual or intrinsic value of such property is the correct measure of damages. State v. M’Duffie, 34 NH 523 (N.H. 1857).
Intrinsic Value: No Case Law
Sentimental Value: Plaintiff is not allowed to recover “sentimental damages” for damage to childhood home. Skiathitis v. City of Manchester Water Works, 2016 WL 3748560 (N.H. 2016).
Municipal/County/Local Governmental Immunity and Tort Liability
Bodily Injury Actions Against Governmental Units: N.H. Rev. Stat. §§ 507-B:1 to 541-B:11. Municipal and county common law immunity abolished in Merrill v. City of Manchester, 332 A.2d 378 (N.H. 1974) (liability same as that of private corporation).
Notice Deadlines: Notice of Claim must be filed within sixty (60) days of discovery of injury. Suit must be filed within three (3) years of injury or damage. N.H. Rev. Stat. § 507-B:7.
General Grant of Immunity: No “governmental unit” liable except as provided in Chapter 507-B. N.H. Rev. Stat. § 507-B:5. Although it doesn’t address it, “discretionary function immunity:(discretionary vs. ministerial) has been regularly applied by courts:
- Decision to lay out roads;
- Traffic control; and
- Setting road maintenance.
Maryea v. Velardi, 135 A.3d 121 (N.H. 2016).
Statute doesn’t completely occupy the field of municipal immunity.
Comments/Exceptions: Exceptions to immunity: “Governmental Unit” liable for damages arising out of ownership, occupation, maintenance or operation of all motor vehicles, and all premises. N.H. Rev. Stat. § 507-B:2. No liability for snow, ice, or other weather hazards on premises owned, occupied, maintained, or operated, unless gross negligence. N.H. Rev. Stat. § 507-B2-b. “Governmental unit” means any political subdivision. N.H. Rev. Stat. § 507-B:1(I). “Political subdivision” means any village district, school district, town, city, county or unincorporated place in the state. N.H. Rev. Stat. § 541-B:1(VI).
Damage Caps: $275,000 Per Person. $925,000 Per Occurrence. N.H. Rev. Stat. § 507-B:4.
Laws Regarding using Cell Phones/Headphones/Texting While Driving
Cell Phone/Texting: No driver may operate a vehicle and use an electronic device in a hand-held manner. Exceptions include emergency situations, two-way radios, or operating in a hands-free manner. N.H. Rev. Stat. Ann. § 265:89-C
No driver under the age of 18 may operate a vehicle and use a mobile device, regardless if it is hands-free. N.H. Rev. Stat. Ann. § 265:89-C-IV.
No driver, regardless of age, may operate a vehicle and send, receive, or type a text message. N.H. Rev. Stat. Ann. § 265:105-a.
Other Prohibitions: Bluetooth headsets are allowed. N.H. Rev. Stat. Ann. § 265:89-C-II
Workers’ Compensation Claims by Undocumented Employees
Statute: The statute is silent on “aliens” and their legal status. N.H. Rev. Stat. Ann. § 281-A:2.
Case Law: Rosa v. Partners in Progress, Inc., 868 A.2d 994 (N.H. 2005).
Comments/Explanation/Other: *Rosa held that disability payments are recoverable at U.S. wages instead of wages of the worker’s home country if the employer was aware, or should have been aware of the employee’s illegal status.
Admissibility of Expert Testimony
Admissibility Standards: Daubert
Case/Statutory Law: Baker Valley Lumber, Inc. v. Ingersoll-Rand Co., 813 A.2d 409 (N.H. 2002).
Imputing Contributory Negligence of Driver to Vehicle Owner
Imputed Contributory Negligence Law: Contributory negligence of driver is not imputed to owner-passenger suing third party for damages. Baker v. Lord, 409 A.2d 789 (N.H. 1979).
Imputed contributory negligence is limited to cases where there is a right to control, such as master/servant, principal/agent or joint enterprise. Clough v. Schwartz, 48 A.2d 921 (N.H. 1946).
Vicarious Liability/Family Purpose Doctrine: No Vicarious Liability Statute.
Family Purpose Doctrine in no longer recognized in New Hampshire. Moulton v. Langley, 81 N.H. 138, 124 A. 70 (1923); Lafond v. Richardson, 84 N.H. 288, 149 A. 600 (1930).
Sponsor Liability for Minor’s Driving: No Sponsorship Liability Statute.
Product Liability Law
Statute of Limitations/Repose: 3 years for personal injury and wrongful death. N.H. Rev. Stat. Ann. § 508:4. Discovery Rule applies. Statute of Repose is 8 years (Construction). N.H. Rev. Stat. Ann. § 508: 4-b.
Liability Standards: Negligence, Strict Liability, Warranty.
Fault Allocations: Modified Comparative. N.H. Rev. Stat. Ann. § 507:7(d).
Non-Economic Caps/Limits On Actual Damages: No.
Punitive Y/N and Limits: No.
Heeding Presumption?: No.
Innocent Seller Statute: No.
Joint and Several Liability: Yes, if > 50%. N.H. Rev. Stat. Ann § 507:7-e.
Available Defenses: Assumption of Risk; Misuse; Alteration; Learned Intermediary; State of the Art; Presumption.
Restatement 2nd or 3rd?: Both.
Owner Liability For Stolen Vehicles
Key In The Ignition Statutes: N.H. Rev. Stat. Ann. § 265:72.
Common Law Rule: A motor vehicle accident caused by a thief, who was able to steal a vehicle because the vehicle owner failed to remove the key from the ignition, does not create liability for the vehicle owner because the subsequent accident was not foreseeable. Manchenton v. Auto Leasing Corp., 605 A.2d 208 (1992).
Under the Sutton rule, a tenant was considered a co-insured of the landlords with respect to fire damage to the leased residential premises and, thus, the insurer had no right of subrogation against tenant whose negligence caused the fire damage. Cambridge Mut. Fire Ins. Co. v. Crete, 846 A.2d 521 (N.H. 2004).
Use of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Authority: N.H. Rev. Stat. Ann. § 407-D:1 to D:5.
Summary: All non-OEM parts must be permanently marked in a way that identifies the part manufacturer and should be left visible after the installation if practical. Insurers may not require the use of non-OEM parts unless they are of equal quality to the same OEM part. The insurer must give a written statement to the insured that identifies which parts are non-OEM parts and inform them that the parts are of equal quality to an OEM part. The language of the disclosure must conform to the specific language in the statute. Non-OEM parts may not be used on vehicles less than two-years-old or with less than 30,000 miles on the odometer or on leased vehicles if the vehicle’s lease holds that the use of non-OEM parts will reduce the vehicle’s residual value.