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Bar News - May 18, 2007

Morning Mail: HB 143 Would Not Restore ‘Traditional Balance’ of Legal Liability


I read with interest Chuck Douglas’ article in the April 20, 2007 Bar News about pending House Bill 143 that attempts to reverse the Nilsson and DeBenedetto cases that radically changed how damages are allocated in multi-party tort cases in New Hampshire.


I do not write to weigh in on whether the system in place before these decisions was “better” or “fairer” than the new scheme New Hampshire litigators are feeling their way through under these new cases (with no doubt more cases will come as other remaining issues under the new system are litigated).


Rather, I want to point out that House Bill 143 would not “restore legal liability to its traditional balance” as the headline to Attorney Douglas’ article asserts.  House Bill 143 overturns Nilsson and DeBenedetto by changing the definition of “parties” in RSA 507-7:7-e to limit it to “only those individuals or entities who are plaintiffs or defendants in the lawsuit when the jury or court is determining the proper apportionment of fault.” Prior settling or dismissed parties are not “parties.” However, this language reverses only half of the new Nilsson/DeBenedetto system.  It does nothing to restore the full credit that any defendant who proceeded to trial under the old system was entitled to for any amounts the plaintiff has recovered from settling parties.


That credit is found in RSA 507:7-h and 507:7-i.  In Nilsson the Supreme Court held that even though those statutes’ language is not limited to joint tortfeasors, which was their proper interpretation, based on how most other states had dealt with the same issue [Nilsson v. Bierman, 150 N.H. at 398-400 (2003)].  Therefore, if House Bill 143 becomes law, we will return to the pre-Nilsson apportionment system only as to who is a “party,” but not as to any defendant who goes to trial getting a credit for any settlement the plaintiff has received. There is no “traditional balance” here. 


Under the current system and the proposed bill, any severally-only liable defendant (those found less than 50 percent at fault), gets no credit for any settlement the plaintiff has obtained.  Defendants who are determining whether they should settle or go to trial have to estimate whether they will be found “liable enough” to get the credit (as a 50 percent or more at fault joint tortfeasor) or whether they will come in at less than 50 percent liability, but lose the credit.  This new scheme adds a whole new layer of analysis and uncertainty that was not present under the pre-Nilsson system.


By not reversing this aspect of Nilsson as well, House Bill 143 gives the plaintiff’s bar the “best of both worlds.”  If the aim of House Bill 143’s supporters is truly to return to the old system and its “traditional balance,” they have missed the mark.


Thomas Quarles, Jr.



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