Automobile Insurance SubrogationAutomobile Total Loss ThresholdsDeductible ReimbursementDiminution of ValueFuneral Procession Traffic LawsImputing Contributory Negligence of Driver to Vehicle OwnerLaws Regarding using Cell Phones/Headphones/Texting While DrivingLoss Of UseMed Pay/PIP SubrogationOwner Liability For Stolen VehiclesPayment of Sales Tax After Vehicle Total LossPedestrian and Crosswalk LawsRental Car Company Physical Damage and Loss of Use ClaimsRental Car Company’s Liability Insurance Primary or ExcessSlower Traffic Keep RightSudden Medical Emergencies While DrivingSuspension of Drivers’ LicensesUse of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Federal , State, and Local Governmental EntitiesMunicipal/County/Local Governmental Immunity and Tort LiabilityState Sovereign Immunity And Tort Liability
General Tort Laws/StatutesAnti-Indemnity StatutesContribution ActionsContributory Negligence/Comparative FaultDog Bite LawsEconomic Loss DoctrineParental ResponsibilitySpoliationStatute of LimitationsStatute of Limitations Exceptions
Health Insurance SubrogationHealth and Disability Insurance
InvestigationAdmissibility of Expert TestimonyPre-Suit Disclosure of Liability Policy Limits in Third-Party ClaimsRecording Conversations
Product Liability SubrogationProduct Liability Law
Property Subrogation“Matching Regulations” And Laws Affecting Homeowners Property ClaimsCondominium/Co-Op Waiver of Subrogation LawsDamage to Property Without Market ValueGeneral Contractor Overhead And Profit Payments In First-Party ACV Property Damage ClaimsLandlord/Tenant Subrogation
Subrogation GenerallyAnti-Subrogation RuleCriminal RestitutionMade Whole DoctrineMedical Expenses, Insurance Write-Offs, and The Collateral Source Rule
Workers’ CompensationEmployee Leasing LawsHospital Lien LawsOCIP/CCIP Subrogation In Workers’ Compensation Construction CasesRecovery Of Increased Workers’ Compensation Premiums By EmployerWhich Workers’ Compensation “Benefits” Can Be Subrogated?Workers’ Compensation Subrogation Waiver EndorsementsWorkers’ CompensationWorkers’ Compensation Claims by Undocumented Employees
Automobile Insurance Subrogation
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).
Automobile and Property: No applicable statute, Administrative Code provision or case law exists.
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.
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.
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.
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
Loss Of Use
Loss of Use: Yes. Loss of use is measured by the cost of a rental vehicle during the reasonable time required for repairs. Copadis v. Haymond, 47 A.2d 120, 122 (N.H. 1946). Loss of use not recoverable in instances of total destruction in value. Id. When vehicle is total loss, the lost value of a reasonable use for business purposes would be the cost of other reasonable substitute means of transportation in excess of what expense of the operation of the plaintiff’s own car would’ve been. Rogers v. Nelson, 80 A.2d 391 (N.H. 1951).
Lost Profits: No case law or statutory support for lost profits as a measure of loss of use damages.
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.
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).
Payment 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.
Pedestrian and Crosswalk Laws
N.H. Rev. State. Ann. § 265:35: Vehicle must yield to pedestrians close to or in vehicle’s half of crosswalk. Pedestrians must not leave crosswalk in front of vehicle if vehicle does not have time to stop.
N.H. Rev. State. Ann. § 484B.287: Pedestrians must yield to vehicles when crossing outside crosswalk. Pedestrians must use crosswalk at intersections with traffic control devices. Pedestrians must not cross diagonally.
Summary: Although pedestrians have no statutory duty to use a crosswalk, failure to use an available crosswalk may in some instances constitute negligence if said failure causes or helps to cause accident. Bellacome v. Bailey, 121 N.H. 23, 426 A.2d 451 (1981).
Rental Car Company Physical Damage and Loss of Use Claims
Recovery From Renter: Recovery of physical damage and loss of use are not prohibited or otherwise regulated. Terms of rental agreement control. Collision Damage Waivers not regulated.
Recovery From Third-Party: Nothing specifically stating car rental company can recover loss of use. Generally, value of reasonable use of a vehicle for business purposes would be the cost of other reasonable substitute means of transportation in excess of what the expense of the operation of the plaintiff’s own vehicle would have been. Rogers v. Nelson, 80 A.2d 391 (N.H. 1951). However, in one case the only evidence was the reasonable value of the car at $20 per day. In that case, the jury properly found that where the evidence failed to show the owner needed the vehicle or was inconvenienced by its loss, no loss of use damages were incurred. Gelinas v. Mackey, 465 A.2d 498 (N.H. 1983).
Rental Car Company’s Liability Insurance Primary or Excess
Summary: No case or statutory law dealing specifically with car rental companies. Terms of rental agreement and renter’s liability policy should be compared to determine which is primary. Mandatory liability coverage provided by the car rental company does not have to be primary. Progressive Northern Ins. Co. v. Enterprise Rent-A-Car Co. of Boston, Inc., 149 N.H. 489 (N.H. 2003).
Slower Traffic Keep Right
Statute: N.H. Rev. Stat. Ann § 265:16
Summary: Drivers must drive in the right lane and use the left lane for passing only. Drivers must drive in the right lane except when overtaking another vehicle; when an obstruction creates a hazard in the right lane; upon a roadway with three marked traffic lanes; and upon a city street designated for one-way traffic. Slower traffic must keep right. The driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle on audible signal. Any vehicle proceeding slower than the normal speed of traffic must drive in the right lane.
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).
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.
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.
Federal , State, and Local Governmental Entities
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.
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.
General Tort Laws/Statutes
Prohibits Additional Insureds. Applies to Indemnification Agreements. N.H. Rev. Stat. §§ 338-A:1; 338-A:2.
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.
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).
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.
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.
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.
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).
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’ Comp Third Party Case3 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.
Health Insurance Subrogation
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) (*insurer has no equitable right of subrogation absent a contractual provision). 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).
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).
Pre-Suit Disclosure of Liability Policy Limits in Third-Party Claims
Duty To Disclose: No.
Failure To Disclose A Basis For Bad Faith: New Hampshire does not usually consider the existence or limits of insurance in the ordinary tort case a matter for inquiry even post-suit in discovery. Durocher’s Ice Cream, Inc. v. Peirce Const. Co., 210 A.2d 477 (N.H. 1965); Hardware Mut. Cas. Co. v. Hopkins, 196 A.2d 66 (N.H. 1963). Disclosure of policy limits allowed only to the claimant or his counsel for the policy or policies of all liability insurance applicable to the defendant. N.H. Stat. § 498:2-a. “Insurance Coverage Disclosure in Tort Cases.”
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).
Product Liability Subrogation
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.
“Matching Regulations” And Laws Affecting Homeowners Property Claims
Condominium/Co-Op 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.
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).
General Contractor Overhead And Profit Payments In First-Party ACV Property Damage Claims
Payment And Depreciation Of GCOP/Sales Tax: No applicable case law, statutes, administrative rules, or other guidance with regard to the calculation and/or depreciation of GCOP.
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. The implied coinsured fiction was recently extended to apply to students living in a dorm at Dartmouth College.
In Ro v. Factory Mut. Ins. Co. as Trustees of Dartmouth College, 2021 WL 915034 (N.H. 2021), the plaintiffs lived in separate dormitories on campus, and each paid room and board in addition to tuition. Prior to being assigned a dormitory room, each of the plaintiffs was required to sign a form acknowledging receipt and understanding of the college’s student handbook. Included in the handbook were prohibitions on: (1) possessing charcoal grills in student housing; (2) lighting and burning of any item with an open flame in residence halls; and (3) placing items on, and the use of, “the roof, portico, fire escape, or any other architectural feature not designed for recreational or functional use, except in cases of emergency.” The handbook noted that violation of the open flame policy “may” result in liability for damage due to fire. In addition, the handbook placed responsibility on students for claims arising from damage to college property. It provided that student residents “assume any and all liability for damage or claims that result from their own negligence,” or that of their visitors or guests, and that student residents who damage or vandalize Dartmouth property “will typically be expected to pay restitution.” Students set up a charcoal grill and a fire resulted in over $4.5 million in damages to university property, which was paid by their carrier, Factory Mutual, who attempted to subrogate against the students. The students preemptively filed a declaratory judgment action seeking a declaration that they were “implied co-insureds” under the Factory Mutual policy. The trial court agreed with the students and Factor Mutual appealed. On appeal, Factory Mutual argued that the trial court erred in: (1) concluding that the plaintiffs held a possessory interest in their dormitory rooms; (2) failing to conclude that the plaintiffs were licensees “with a revocable personal privilege to occupy Dartmouth College residence halls” and that, therefore, the anti-subrogation rule set forth in Crete did not apply; and (3) failing to conclude that policies in the student handbook negated any presumption that the plaintiffs are implied co-insureds under the fire insurance policy. In short, Factory Mutual argues that the Crete doctrine does not apply under the circumstances of this case and that, in any event, the parties contracted out of the doctrine through the student handbook. The court held that the Sutton doctrine has not been confined by strict property law distinctions. As the Nebraska Supreme Court noted, “A shared insurable interest and privity between the landlord and tenant are part of the backdrop to the development of the per se rule in Sutton and similar cases, but those concepts do not form a bright line for the rule’s applicability.” Buckeye State Mut. Ins. Co. v. Humlicek, 822 N.W.2d 351 (Neb. 2012). In determining whether to apply the Crete anti-subrogation doctrine to a college/residential student situation, it looked at the contractual relationship between the parties more broadly than whether it was “technically a lease in the traditional sense.” The trial court decision was affirmed.
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).
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).
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.
Medical Expenses, Insurance Write-Offs, and The Collateral Source Rule
Collateral Source Rule: The common law CSR provides that an award of damages may not be reduced by collateral sources, and evidence of collateral sources not permitted. Prevents windfall to defendant. Cyr v. J.I. Case Co., 652 A.2d 685 (N.H. 1994).
Recovery Of Medical Expenses Rule: Private Insurance: Undecided by Supreme Court. Plaintiff may present evidence of the reasonable value of medical expenses billed, but if he does, evidence of write-offs not permitted. Cromeenes v. Pease, 2007 WL 5688535 (N.H. Super. 2007); Reed v. National Council of the Boy Scouts of America, Inc., 2010 WL 432355 (D. N.H. 2010); Carson v. Maurer, 424 A.2d 825 (N.H. 1980), overruled by Community Resources for Justice, Inc. v. City of Manchester, 917 A.2d 707 (N.H. 2007).
Medicare/Medicaid: One case suggests that the billed amount is the proper measure of reasonable medical expenses for Medicaid. Williamson v. Odyssey House, Inc., 2000 WL 1745101 (D. N.H. 2000).
Related Law/Comments: CSR applied to insurance policies, relief association, employment benefits, gratuitous payments, social security, welfare, and pensions. Moulton v. Groveton Papers Co., 323 A.2d 906 (N.H. 1974). Supreme Court hasn’t decided whether Medicaid or Medicare qualify under CSR. Plummer v. Optima Health – Catholic Med. Ctr., 2000 WL 35730973 (N.H. Super. 2000). Some lower courts have said they should. Gulluscio v. Hall, 2007 WL 6647429 (N.H. Super. 2007).
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.
Hospital Lien Laws
Statute: N.H. Stat. §§ 448-A:1 to 448-A:4. Liens in Favor of Hospitals and Home Health Care Providers.
(1) File written notice with the clerk of the town or city in which the hospital or home health care provider (HHCP) is located, within 10 days after patient is discharged.
(2) Notice must contain name and address of injured person, date of accident, name and location of hospital or HHCP, name of party responsible for causing the injury, and/or his attorney.
(3) Notice must be filed before any third-party settlement or recovery.
(4) A copy of this notice with a statement of the date of filing must be sent by certified mail, return receipt requested, to the patient, his attorneys, the tortfeasor, and/or his attorneys, and to any third-party insurance carrier. § 448-A:2.
Comments: Every hospital licensed in N.H. who furnishes medical or other services to a patient not covered by workers’ compensation has a lien on any claim or third-party cause of action against a tortfeasor. § 448-A:1. The third-party tortfeasor must disclose the name of his insurance carrier upon receipt of notice. § 448-A:2. After receiving notice, the tortfeasor, and his insurance company, if they settle the third-party case with the patient/injured person without repaying the lien, remain liable to the hospital or HHCP for one year from the date of settlement, and this liability can be enforced by a suit against such person or insurance company. § 448-A:3. The town or city clerk must maintain and provide a book or card filing system to be called the “hospital and home health care provider lien docket.” It must contain the name of the patient, tortfeasor, and hospital or HHCP, and may charge a fee of $15 for filing the lien. § 448-A:4.
OCIP/CCIP Subrogation In Workers’ Compensation Construction Cases
OCIP Law: No statute or case law specifically dealing with effect of OCIP/CCIP.
Statutory Employer Law: An owner or subcontractor who subcontracts all or any part of a contract is liable for workers’ compensation benefits to the employees of subcontractors. N.H. Rev. Stat. Ann. § 281-A:18.
Comments: Although case law is sparse on this issue, it can be argued that the owner or contractor responsible for benefits to the employee of a subcontractor can claim immunity under the Exclusive Remedy Rule in New Hampshire.
Recovery Of Increased Workers’ Compensation Premiums By Employer
Recovery For Increased Premiums? Undecided.
Statute/Case Law: No.
Rule Summary: There is no authority or precedent regarding the attempted recovery of damages for increased workers’ compensation insurance premiums by an employer from a third-party tortfeasor.
Which Workers’ Compensation “Benefits” Can Be Subrogated?
There is no precedent or discussion in case law regarding whether nurse case management fees or other allocated costs which may benefit the employer and/or employee can be recovered in subrogation. Section 281-A:13 describes a workers’ compensation carrier’s subrogation lien extending as follows:
…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.… N.H. Rev. Stat. Ann. § 281-A:13(I)(b).
Workers’ Compensation Subrogation Waiver Endorsements
Subrogation Statute: N.H. Rev. Stat. Ann. § 281-A:13
Waiver Allowed? No. Section 281–A:13 (VI) prohibits any provision in any agreement that requires an employer or an employer’s insurer to waive any rights of subrogation
Effect Of Waiver Endorsement on Carrier’s Right To Assert A Lien On Claimant’s Recovery: N/A
Other Applicable Law: None.
Statute of Limitations: 3 Years. N.H. Rev. Sat. Ann. § 281-A:13.
Can Carrier Sue Third Party Directly: Yes, after 9 months.
Right to Intervene: Yes.
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.
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.