Supreme Court At-a-Glance Contributor Sam Harkinson, Previously employed as an Assistant County Attorney, and as an insurance adjuster, now as an associate at Hoefle, Phoenix, Gormley & Roberts.

No. 2019-0685

March 2, 2021

Reversed and Remanded


  • Whether the Federal Controlled Substance Act preempts New Hampshire law requiring an insurer to provide repayment for medication related to pain management.


The Petitioner appeals a decision from the New Hampshire Compensation Appeals Board (the “Board”) where it determined that CNA Insurance Company (the “Insurer”) cannot be ordered to reimburse the Petitioner for his purchase of medical marijuana because such reimbursement would constitute aiding and abetting the Petitioner in the commission of a federal crime under the Federal Controlled Substance Act (“CSA”).

The Petitioner suffers from ongoing pain as a result of a work-related injury to his lower back.  While he has otherwise qualified as a member of the New Hampshire Therapeutic Cannabis Program, the Insurer has refused to reimburse him for his expenses related to procuring his medical marijuana.  In its review, the Court framed the issue as one relating to Federal preemption, first analyzing the issue under a theory of impossible preemption, and then reviewing the issue under the obstacle preemption.

In reversing the Board’s determination, the Court specifically finds that the Insurer is not impossibly preempted by the CSA in reimbursing the Petitioner for his expenses related to his medical marijuana.  The Court specifically rejects the argument of the Board and the Insurer that the Insurer would be aiding and abetting the Petitioner.  The Court draws on decisions from other jurisdictions to conclude that the “knowingly” requirement of the crime of aiding and abetting is not met by the Insurer when the Insurer is required by New Hampshire law to reimburse the Petitioner.

Similarly, in analyzing the issue of obstacle preemption, the Court is not persuaded by the Insurer’s conclusory argument that requiring it to reimburse the Petitioner would, “…frustrate Congress’s intent to control and regulate the traffic and use of controlled substances.”  As the Court notes, the Federal government’s ability to prosecute the Petitioner for possession of marijuana is not impeded by the Insurer reimbursing the Petitioner for his expenses related to the medical marijuana.


Shaheen & Gordon, PA, Jared P. O’Connor for the Petitioner.  Tentindo, Kendall, Canniff & Keefe, LLC, Robert S. Martin for the Respondent. Robinson & Cole, LLP, Dana M. Horton for American Property Casualty Insurance Association, as Amicus Curiae.