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Bar News - August 12, 2005 Supreme Court At-a-Glance July 2005 By: Attorney Jocelyn A. Thomsen
State of New Hampshire v. Lott, No. 2004-380 July 15, 2005: Affirmed • Whether the trial court erred by admitting evidence obtained from communication in an Internet chat room where RSA 570-A: 2 prohibits the interception of certain communications, including telecommunications. The trial court did not err in admitting the communication because the defendant consented to the recording of his conversation through the inherent nature of instant-messaging communication. The court need not address whether the further recording by archiving the chat-room conversation violates RSA 570-A: 2 where the first communication was obtained legally. Criminal State of New Hampshire v. Champagne, No. 2004-092 July 15, 2005: Affirmed in part; reversed in part and remanded. • Whether the defendant’s affirmative defense of voluntary renunciation should have been struck on procedural grounds • Whether evidence should have been suppressed where it was seized in the basement of a house where the defendant’s apartment was located, but where another apartment had access to said basement. • Whether evidence seized in a subsequent search should have been suppressed as fruit of the poisonous tree because the initial warrant did not describe the items subsequently seized. The trial court’s allowance of the affirmative defense of renunciation was proper pursuant to Superior Court Rule 101 because the defense set forth the grounds of said defense. The rule does not require the trial court to test the validity of such grounds. The trial court incorrectly applied laws relative to privacy rights in a dwelling subject to a search warrant. Where the warrant did not specify or limit the search to the defendant’s second floor apartment, but rather identified the whole dwelling, the scope of the search included the entire premises and items seized in the basement were not subject to suppression. And those items seized in a subsequent search were no longer fruit of the poisonous tree where the tree was no longer poisonous. Tort – Recreational Use Kenison, et. Al. v. Dubois, No. 2004-815 July 18, 2005; Affirmed • Whether a snowmobile club on property for purpose of grooming trails is immune from liability under the recreational use statutes. The club and the individual operator of the grooming machine were not immune pursuant to statute because they were not on the land in the capacity of owner, occupant, or lessee. Strict interpretation of the statutory language is required where the apparent legislative intent is to grant such immunity only to a party who has the authority or ability to give permission to enter the land; the defendants here did not have these rights. Tort – Duty Berry v. Watchtower Bible and Tract Society of New York, Inc., No. 2003-779 July 15, 2005: Affirmed • Whether the reporting statute, RSA 169-C: 29, provides a civil remedy for its violation, • Whether the defendants – in their role as church elders — owed any common law or fiduciary duty to the plaintiffs for protection from abuse. The reporting statute does not provide a private right of action. Thus it was not necessary to determine whether church elders qualified as clergy so as to claim the confidentiality privilege for an alleged violation of the statute. The position of church members respective to their appointed leaders did not create special circumstances and establish a common law duty necessary to support a claim of negligence. The elders did not create the risk of harm nor control its cessation or continuation. Nor was there a special relationship to sustain a fiduciary duty where the plaintiffs were not entrusted to the defendants’ care. The dissent argued that a common law duty existed under the merged exceptions of overriding foreseeability and special circumstances because the elders had reason to anticipate the conduct and created a situation that facilitated the conduct. The Court disagreed, saying the defendants lacked the requisite control to create such duty. Throughout, the Court was protective of the current limits on civil liability imposed upon private citizens. Worker’s Compensation Appeal of Perry MacDonald (New Hampshire Compensation Appeals Board) No. 2004-503 July 18, 2005: Affirmed. • Whether per diem payments for travel expenses constitute “wages” for the purpose of calculating amount of worker’s compensation award. These per diem payments were “special expenses,” and not part of weekly wages where they were used to cover food, lodging and other expenses solely occasioned by the nature of the employment. “Wages” consist of payment for services rendered or the reasonable value of other advantages received from the employer. Family Law In the Matter of Susan L. Forcier and Todd S. Mueller No. 2004-732 July 19, 2005: vacated and remanded. • Whether the trial court erred where the obligee’s child support award consisted of the child support guidelines amount minus the obligor’s monthly contribution to a college fund for the minor child. • Whether RSA 458:17, XI-a prohibits an order to deposit child support payments into a college trust fund. Where the trial court deviated from the child support guidelines without specific findings as to why the deviation was appropriate, as required by RSA 458-C: 5, I, the order must be vacated. The continued order did not violate RSA 458:17, XI-a, which took effect in 2004, because the statute is applied prospectively only, and does not apply to a post-enactment modification. Property Taxes Appeal of Town of Wolfeboro No. 2004-621 July 19, 2005: Reversed. • Whether the trial court erred in granting a charitable tax exemption for an independent living facility owned by a recognized charitable organization that maintained multiple facilities under its umbrella. The trial court erred where it allowed a living facility that resembled an ordinary rental housing development to receive a tax exemption as a charitable organization. Each property owned by an organization must be examined for its particular use. Where the use and occupancy, and the income derived from the property are not directly related or reasonably necessary for the charitable purpose of the organization, it is not entitled to a charitable tax exemption. Criminal State of New Hampshire v. Knickerbocker, No. 2004-356 July 29, 2005: Reversed and remanded • Whether the trial court erred where it granted the defendant’s motion to dismiss for lack of a speedy indictment. The trial court erred because the defendant failed to establish actual prejudice as a result of the delay; his claims of prejudice by attenuated evidence or testimony were merely speculative or premature. Possible prejudice is inherent in any delay, but does not rise to the level of actual prejudice so as to support dismissal. In New Hampshire the test for determining whether a pre-indictment delay violates due process consists of balancing actual prejudice against the reasonableness of the delay. The Court currently does not follow the majority federal rule requiring a showing of some prosecutorial misconduct or intentional delay by the state to gain a tactical advantage, to establish a due process violation. Insurance Regulation Appeal of Alphadirections, Inc. (New Hampshire Department of Insurance) No. 2004-518 July 29, 2005: Affirmed • Whether the Department of Insurance erred where it found that the petitioner had violated the insurance brokering and consulting statutes for accepting fees related to the State’s insurance programs without an insurance producer license. • Whether the imposition of a $42,500 fine for the violations was arbitrary. The petitioner could not show by a preponderance of the evidence that the commissioner’s order was unreasonable or unlawful. The petitioner did engage in insurance consulting and “negotiations” and did “obtain” insurance by statutory definition, and without the requisite license. To hold otherwise would render the insurance producer licensing requirements meaningless in a majority of transactions. The amount of the fine was not arbitrary where each violation of insurer licensing statutes is subject to a $2500 fine, and the petitioner accepted a series of seventeen payments found to be in violation of the statutes. Writ of Mandamus Schiavi v. City of Rochester, No. 2004-805 July 29, 2005: Vacated and remanded • Whether the City of Rochester is required by statute to bill individual owners directly for water and sewer services after a conversion from a master meter system to individual utility meters in a manufactured housing park. The trial court erred where it found that RSA 205-A: 6, II should apply only to the relationship between mobile home park tenants and park owners. Where the legislature intended to also regulate the relationship between utility users and municipal or private utility providers, the statute prescribes that the city shall bill the park tenants directly for their usage after a proper conversion. Insurer Liability Cambridge Mut. Fire Ins. Co. v. Peerless Ins. Co., No. 2004-867 July 29, 2005: Affirmed and remanded. • Whether there was no genuine issue of material fact that cancellation of an insurance policy was mutually agreed upon, and that an insurance agent was acting in a dual agency capacity, resulting in the petitioner’s sole liability for property damage. Summary Judgment was appropriate where undisputed facts confirmed the mutual agreement of the insured and the agent to cancel the existing Peerless policy. In New Hampshire, an insurance agent may act as a dual agent, and was acting in such capacity at the time of the mutual agreement. Where the Petitioner’s Motion to Amend and assert new substantive claims had not been addressed by the trial court, that motion was remanded for consideration. Insurer Liability Banfield v. Allstate Ins. Co., No. 2004-814 July 29, 2005: Affirmed • Whether a homeowner’s policy that provides limited coverage for a vehicle not intended for use on a public highway may be treated as a motor vehicle liability policy, and thus statutorily void a policy exclusion and incorporate other provisions that may allow the petitioner to recover. Unambiguous language of homeowner’s policy provides limited coverage for certain recreational vehicles, but still was a property insurance policy. The Petitioner could not impute provisions such as uninsured motorist coverage on a homeowner’s policy. The legislature did not intend that insurance policies with any coverage for any motor vehicle would be considered a ‘motor vehicle liability policy’ or it would have said so. Jocelyn A. Thomsen is with Howie Law Office in Salem and practices primarily in the areas of domestic relations and appeals, in both New Hampshire and Massachusetts. This fall she will begin her fourth year teaching writing and research at the Massachusetts School of Law in Andover. She has been a member of the NH Bar since 2001. |
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