 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 
|
|
 |
||||||||||||||||
|
Bar News - February 18, 2005 Supreme Court At-a-Glance: January 2005 About the Editor: Susan D. Bielski is a freelance legal/writer editor specializing in legal and business documents, manuscripts and Web site content. She graduated from Franklin Pierce Law Center in 1993. In an effort to be timely with the publication of these summaries, the Supreme Court At-a-Glance feature for January will appear in two parts, with the remaining cases for January being published in the next issue. Visit www.nhbar.org for December summaries. PERSONAL JURISDICTION Brito v. Ryan, Whether the Superior Court erred when it held that defendant New Hampshire resident waived defense of lack of personal jurisdiction by failing to raise it in the Arizona lawsuit in which he chose not to appear and in which a default judgment was rendered against him? Because the defendant did not appear in the Arizona lawsuit, he cannot be held to have submitted himself to the personal jurisdiction of the Arizona court, and the issue was not litigated. Therefore, the Superior Court's reliance on Mosier v. Kinley (holding that a defendant who unsuccessfully challenges personal jurisdiction must immediately appeal or be deemed to have waived the issue) was misplaced. As the issue of personal jurisdiction had not been fully litigated below, the Court could not reach the merits of the case. EVIDENCE State v. Rogan, Whether the admission of the entire audiotape of an interview with alleged victim of felonious sexual assault for the purpose of rebutting inference, created by defense on cross-examination of interviewer, that the investigation was unfair and some of the victim's testimony was coerced, where defense had used transcript to impeach interviewer, was an abuse of discretion? Since counsel had extensively referenced the transcript of the interview, the entire audiotape had significant probative value and was the best evidence upon which the jury could assess the credibility and integrity of the interviewer. Since the trial court provided a proper limiting instruction to the jury, the admission of the tape was not unduly prejudicial. The trial court acted within its reasonable discretion. DAMAGES Figlioli v. R.J. Moreau Companies, Inc, Plaintiffs were injured when deck built by defendant collapsed due to insufficient structural support. Liability was stipulated. Whether the trial court erred by 1) failing to grant defendant's motion for directed verdict upon the issue of enhanced compensatory damages; 2) allowing testimony by a general practice surgeon regarding Karen Figlioli's neurological impairment; 3) allowing testimony regarding Karen Figlioli's lost earning capacity as a real estate agent and 4) allowing plaintiffs to introduce evidence of uncontested construction defects? Enhanced compensatory damages may only be awarded in exceptional cases where wanton, malicious or oppressive conduct is the cause. Evidence offered was too conjectural to support a grant of enhanced compensatory damages. Plaintiff's physician witness lacked the education and experience to qualify him as an expert on the issue of neurological impairment. Admission of evidence of lost wages from Karen Figlioli's future career as a real estate agent was unsustainable exercise of discretion where both the expert and the dollar figure in question were not disclosed until after the close of discovery. As defense neither raised the purportedly defective windowframe as an example of a defect which Karen Figlioli misidentified nor offered proof that Karen Figlioli discovered actual defects in construction, evidence that she had trouble understanding the carpenter's explanation of the perceived windowframe defect was irrelevant, and evidence of other actual defects did not tend to show her mental acuity prior to the accident; therefore admission of this evidence was an unsustainable exercise of discretion. Remanded for retrial on issue of damages only. LANDLORD/TENANT Adams v. Woodlands of Nashua, Whether the trial court erred in finding that the defendant landlord had willfully violated plaintiff's right to quiet enjoyment of his tenancy in contravention of RSA 540-A:2? As the roach infestation complained of did not cause the tenant to lose the use of his property, a finding of a violation of the right to quiet enjoyment was improper. INSURANCE Krigsman v. Progressive Northern Insurance Co., Whether the trail court erred in finding that petitioner materially breached his duty to cooperate with insurance company in the investigation of his insurance claim? Petitioner's refusal of insurer's reasonable request that he submit to an examination under oath constituted a breach of his duty under the policy to cooperate with the investigation of his claim. Submission to an examination, if the request is reasonable, is a condition precedent to insurer's liability. The insurer is not required to show that its investigation was prejudiced by the refusal. Progressive Northern Insurance Company v. Concord General Mutual Insurance Company, No 2003-050, January 10, 2005: Affirmed in part, Vacated in part and Remanded Whether the trial court erred when it held on summary judgment that exclusion in vehicle owner's insurance policy barring liability coverage for drivers operating a vehicle without a reasonable belief of entitlement to do so applied to bar coverage to unlicensed driver, when the primary operator had given unlicensed driver consent to use the vehicle? • Whether the trial court erred when it held on summary judgment that the New Hampshire Accidents and Financial Responsibility Act, RSA 264, required insurer of owner of car to provide liability coverage for unlicensed driver, where the primary operator, against instructions of the owner, had given unlicensed operator implied consent such that he had "possession and control" of the vehicle? Unlicensed driver knew he lacked lawful authority to operate any motor vehicle upon a public way and so could not have had a reasonable belief that he was entitled to use the car despite apparent permission of primary operator, therefore entitlement exclusion was applicable. Issues of material fact concerning unlicensed driver's belief as to authority of primary operator over use of the vehicle render summary judgment on the statutory omnibus clause improper. |
|
Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store New Hampshire Bar Association |
