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Bar News - October 17, 2008

NH Supreme Court At-a-Glance September 2008


Appeal of SAU #35 White Mountain School District, No. 2007-657
September 12, 2008
Reversed and Remanded

· Whether the New Hampshire Compensation Appeals Board ("the Board") exceeded its authority by addressing the effect of a stay upon an insurance carrier’s obligation to pay medical bills when neither party specifically appealed the issue.

· Whether the Board erred by ordering the carrier to pay medical bills despite the fact that a hearing officer granted its motion to stay.

· Whether the Board erred by failing to address whether subsequent medical treatment was reasonable and required by the nature of a claimant’s injury.

The claimant, a business administrator for the school district, suffered a "mini stroke" while attending a school board meeting and engaging in a prolonged and heated discussion with a member of the school board. The claimant filed a workers’ compensation claim for indemnity and medical benefits. The New Hampshire Department of Labor ("DOL") awarded the claimant total disability benefits from the day after his stroke until he returned to work some six months later. The claimant continued to see his doctor for medical care after returning to work and submitted the bills to the school district’s insurance carrier for payment. The carrier denied the bills and informed the claimant’s health care provider that the claimant’s case was closed.

The claimant went before the DOL seeking coverage for the claimed medical bills. The hearing officer concluded that the subsequent medical bills were compensable and ordered the carrier to pay the bills within thirty days. The carrier timely filed a motion to reconsider, a motion to stay the payments, and an appeal to the Board. Over three months after the carrier filed its motions, and after the claimant’s repeated requests for enforcement of the DOL decision, the officer denied the motion for reconsideration but stayed the payments pending appeal. The claimant did not file an appeal of the stay.

Upon appeal the Board concluded that the carrier was to pay the claimant’s medical bills incurred after he returned to work and through the date of the DOL hearing. The Board also concluded that because a stay was not issued within thirty days of the officer’s decision, even though the carrier requested one within the statutorily designated thirty days, that the carrier was obligated to pay the medical bills. The Board did not address whether the medical visits at issue were reasonable and required by the nature of the claimant’s injury.

The Court concluded that the Board exceeded its authority in its decision about the stay and it order to the carrier to pay the medical bills because no party appealed the stay to the Board. The claimant conceded at oral argument that the Board erred when it failed to determine whether the medical bills at issue were the result of treatment that was both reasonable and required by the nature of the claimant’s injury. Accordingly, the Court remanded the matter for findings as to the nature of the treatment.

Gary S. Harding of Bernard & Merrill, PLLC for the appellant insurance carrier. Shawn Nichols of Fitzgerald & Nichols, PA for the claimant.


Estate of Sicotte v. Lubin & Meyer, P.C., No. 2007-731
September 12, 2008

· Whether the facts of the case required an expert witness to establish legal malpractice and resultant harm caused by the breach.

· Whether the plaintiff could use the defendant’s expert witness to provide the testimony required to sustain its burden of proof.

· Whether the rule that an attorney seeking to enforce a fee contract bears the burden of proving the fairness and reasonability of the contract and the full knowledge of the clients as to their rights relieved the estate of its burden of proof in a legal malpractice claim.

The plaintiff estate of a minor brought a legal malpractice claim against a defendant law firm that represented the minor in a medical malpractice action arising from birth injuries. The minor’s parents signed a fee agreement with the law firm that called for a contingent fee. The medical malpractice suit settled for $2,250,000. At a hearing on a petition to approve the settlement the law firm requested and received the approval of a one-third contingent fee. The guardian of the estate brought suit for legal malpractice, alleging that the firm 1) failed to inform the parents of Superior Court Rule 111 which restricts contingency fees in excess of 25 percent and 2) failed to comply with RSA 508:4-e, II by failing to inform the parents of the option of paying a hourly rate for legal services. The plaintiff failed to disclose an expert witness in strict compliance with the order of the lower court and the superior court dismissed the claim on the grounds that the disclosure was inadequate.

The Court rejected the estate’s argument that the facts of the case were so straightforward that they did not require expert testimony. The Court concluded that the plaintiff needed expert witness testimony to prove that any breach of the law firm’s duties was the legal cause of the estate’s injuries. The case was not a simple question of whether the law firm failed to comply with the law, but rather, was beyond the ken of an average juror. The estate had to prove: 1) that the parents would have acted in such a way as to prevent the approval of any fee in excess of 25 percent, or 2) that the parents would have hired another firm on an hourly basis who would have obtained a similar result at a lower cost. The Court rejected the estate’s argument that it could rely on the testimony of the law firm’s expert witness because the firm’s expert and principal attorney would testify directly counter to the estate’s theory of causation. The Court also rejected the estate’s argument that the superior court should have waited until the expert witness testified at trial before deciding if the firm’s expert witness would sustain the estate’s burden of proof as to legal malpractice.

The failure of the estate to disclose by the court-ordered deadline a summary of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion was fatal to its claim of malpractice. Furthermore, the estate’s expert witness disclosure failed to outline any expert witness testimony in support of its claim that the breach legally caused any resultant harm. Lastly, the Court rejected the estate’s claim that the plaintiff’s burden of proof in this matter was different because of the well-settled rule that any attorney seeking to enforce a fee contract has the burden of proving that it is fair and reasonable and that the clients has full knowledge of the facts and legal right with relation thereto. The Court reasoned that the matter did not involve an action to enforce a fee contract, but was a claim of legal malpractice.

Alfred Catalfo, III of Dover and Stanley Mullaney of Mullaney & Richardson, PA for the Estate. Stephen Tober and Kelleigh Domaingue of Tober Law Offices for the Law Firm.


Tarbell Administrator, Inc., Trustee of the Tarbell Family Revocable Trust of 2003 v. City of Concord, No. 2008-025
September 12, 2008
Affirmed in part, reversed in part.

· Whether the doctrine of discretionary function immunity barred claims of negligence for failure to properly construct a dam, negligence for failure to properly maintain a drainage system, negligence for failure to properly control and regulate water, trespass, and nuisance.

Penacook Lake serves as the city’s municipal water supply source. A dam with removable flashboards allows the city to control the level of water in the lake. An emergency spillway flows directly from the lake into a brook flowing under and through the property of the plaintiff. The city retained the services of an expert to determine the target elevation for the lake in an effort to guide the city in deciding when to pump water from a river in order to maintain an adequate water supply. In the fall of 2005, the city experienced unusually heavy rainfalls. Following the expert’s advice, the city refrained from pumping water from the river as scheduled due to the high level of the lake. At the beginning of 2006, the city decided not to remove flashboards that would allow the lake to drain some after analyzing how to best strike a balance between maintaining the target lake level, the anticipated peak summer water demands, the potential lack of rainfall conditions which would lower the lake level, and protecting downstream property owners. In May 2006, the city received a record amount of rainfall that resulted in water spilling over the dam’s emergency spillway and into the brook crossing plaintiff’s property, resulting in severe water damage to the property. The plaintiff brought suit against the city.

The superior court granted the city summary judgment as to all of the claims against it based on the doctrine of discretionary function immunity. The doctrine is premised upon the notion that certain essential, fundamental activities of government must remain immune from tort liability so that government can govern. The doctrine limits judicial interference with legislative and executive decision-making. The doctrine protects the government for discretionary decisions but not for the negligent manner in which it carries out its decisions. The Court concluded that the city’s decisions not to remove the flashboards and to construct the dam such that the brook was its sole outlet were discretionary decisions protected by the immunity doctrine. The city made those decisions to best provide municipal water and manage the dam associated with the same.

The Court held that the discretionary immunity doctrine did not, however, bar the plaintiff’s claims that the city negligently failed to properly maintain the drainage system, intentionally trespassed upon plaintiff’s property, and created a private nuisance. Plaintiff’s allegations that the city failed to adequately maintain its water systems and outlets did not concern the management of a dam and water supply, because the city had no plan or policy concerning the maintenance of drainage systems. Rather, the city’s failure to have any such policy resulted in the obstruction of the flow of water and caused damage to plaintiff’s property. Similarly, the intentional trespass and private nuisance claims were not based on the city’s decision concerning the management of a dam and water supply. Such intentional tort claims are permitted because of the constitutional underpinnings in the restraint on the taking of private property for public use without just compensation.

Friedrich Moeckel of Tarbell & Brodich, PA for Plaintiff. Charles Bauer and John Alexander of Ransmeier & Spellman, PC for the City.

Dawnangela Minton is a member of Bernstein Shur’s Litigation Practice Group and Environmental and Natural Resources Practice Group. She focuses on commercial, business, and employment litigation, and white-collar criminal defense and environmental matters. A Manchester resident, Minton is an experienced trial and appellate lawyer; she worked as an environmental scientist before attending law school

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