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Bar News - September 17, 2010

NH Supreme Court At-a-Glance - August 2010

Administrative Law Ė NH Department of Safety Bureau of Hearings

Petition of James M. Mooney
No. 2009-119
August 19, 2010
  • Whether petitioner must complete further treatment in an Impaired Driver Intervention Program (IDIP) before restoration of his driverís license by the NH Department of Safety.
The petitioner, James M. Mooney, was arrested for, but not convicted of, driving while intoxicated in 1994. In 2004, Mooney was convicted of driving while intoxicated, which resulted in the suspension of his driverís license. Mooney attended an IDIP, and at its conclusion, was evaluated by a licensed alcohol and drug counselor who recommended additional treatment because Mooney met "the criteria for a positive diagnosis for alcohol dependency or abuse." The recommendation was based in part upon the 1994 arrest and 2004 conviction. Mooneyís license remained suspended based upon the recommendation. At a department of safety hearing, Mooney unsuccessfully argued that the IDIP could not impose a penalty for an arrest not resulting in a conviction.

The State first argued that the Court should dismiss the appeal because Mooney failed to appeal the hearings examinerís decision to the superior court pursuant to RSA 263:76. However, the Court (Duggan, J.) noted that RSA 263:76 governs appeals stemming from decisions to suspend or revoke a license. Because Mooney was appealing the decision of the hearings examiner, and not the decision to suspend his license, the Court found that RSA 263:76 did not apply in this instance, and that the appeal was properly before it under the provisions of RSA 541:6.

Next, the State argued that alcohol or drug-related motor vehicle arrests may be used to consider whether further treatment is required, and that N.H. Admin. Rule 707.12 is valid because it furthers the purposes of protecting the public and treating alcohol problems, and does no more than fill in statutory gaps. The Court has previously recognized that the legislature specifically granted the IDIP the authority to determine whether an individual is in need of further counseling, and that the purpose of the DWI statutes is to prevent the operation of cars by persons under the influence of intoxicating liquor. The Court stated that it "cannot conclude that Rule 707.12 adds to, detracts from, or in any way modifies statutory law." Accordingly, the Court held that Rule 707.12(c)(3) "was promulgated pursuant to a valid delegation of authority and therefore has the force and effect of a law."

James M. Mooney, by brief, pro se. Michael A. Delaney, attorney general (Rosemary Wiant, assistant attorney general, on the brief), for the State.

Administrative Law Ė NH Public Employee Labor Relations Board

Appeal of New Hampshire Division of State Police
No. 2009-496
August 19, 2010
  • Whether a unilateral reassignment of state troopers was an unfair labor practice.
Under a collective bargaining agreement, state troopers may live within a town within a patrol area to which they are assigned, or within a reasonable distance thereof. The term "reasonable distance" is not defined in the agreement. Troopers use Division of State Police ("division") cruisers to commute between their homes and assignments. In 2008, the division (petitioner) revised its Professional Standards of Conduct to define "reasonable distance" as a distance that would not cost the division more than $100 per year in commuting expenses. Thereafter, some troopers were reassigned to patrol areas that included towns in which they resided. Following a complaint filed by respondent New Hampshire Troopers Association, the PELRB determined that the division had breached the collective bargaining agreement by unilaterally defining "reasonable distance," and that the subsequent troop reassignment was based upon an illegal directive. The PELRB ordered the reassignment directive voided.

First, the Court (Conboy, J.) agreed with the division that the reassignment directive, which was based on an assessment of fuel savings, was independent of its decision to define "reasonable distance." Next, the Court found that the collective bargaining agreement expressly reserves to management the discretion to transfer and assign troopers, and that this express reservation of discretion is not limited by the "reasonable distance" language in the agreement. Accordingly, the Court held that the PELRB erred in finding that the unilateral reassignment of troopers was an unfair labor practice.

Michael A. Delaney, attorney general (Nancy J. Smith, senior assistant attorney general, on the brief and orally), for the petitioner. Molan, Milner & Krupski, Concord, (John S. Krupski on the brief and orally), for the respondent.

Administrative Law Ė NH Retirement System

Petition of Martin J. Dunn
No. 2009-265
August 19, 2010
Vacated, and remanded
  • Whether the hearings examiner erred by finding that the petitionerís disability was not work-related, that the petitioner had not met his burden of proof, and for failing to report evidence to the board of trustees.
The petitioner, Martin J. Dunn, was the chief of police in the Town of Jaffrey from 2002 until he was terminated in October 2006. During 2005, Dunn was under stress due to staffing shortages and budget disputes. On December 8, 2005, Dunn was suspended by the town manager. This occurred several days after Dunn informed the town manager that he had contacted the U.S. Attorney regarding suspected improprieties by the town manager. Dunn continued to suffer stress-related health problems, both before and after returning to work, and he subsequently sought treatment by a physician. Dunn applied for accidental disability retirement (ADR) benefits, but his application was twice denied based on recommendations of a NHRS hearings examiner. The examiner found that Dunnís disability was not work-related because Dunn had not met the burden of proving that his disability was caused by a "repeated trauma or gradual degeneration" injury under RSA 100-A:6, II(c)(1), despite, inter alia, his submission of reports from three treating physicians each stating that Dunn suffered from job-related stress over a relevant period of time.

The Court (Conboy, J.) found that the hearings examiner erred as a matter of law because she limited her analysis of the evidence to the single disciplinary incident of December 8, 2005. The Court noted that it is a well-settled standard that a cumulative trauma injury may be compensable under the workersí compensation law when it "result[s] in an acute manifestation occurring on a particular day which is so intolerable that it prevents the claimant from working." The Court found that "requiring a single traumatic event to establish such a claimed injury constitutes legal error," and that "the hearings examiner should have considered all of the additional asserted aggravating stressors occurring between Dunnís December 2005 suspension and his July 2006 cessation of duties." The Court also noted that the hearings examiner appeared to make an unauthorized distinction between "work-related" and "personnel-related" psychological injury, and that an employee does not need to establish that good faith discipline did not cause the claimed injury.

Ransmeier & Spellman, Concord, (Daniel J. Mullen on the brief and orally), for the petitioner. Foley Law Office, Concord, (Peter T. Foley on the brief and orally), for the respondent.

Criminal Procedure Ė Jury Instructions

State v. Roger Leveille
No. 2009-416
August 19, 2010
  • Whether the trial court failed to give the proper jury instruction concerning accident.
The defendant, Roger Leveille, had an altercation with Gregory Ellis, during which Leveille produced a gun, and shortly thereafter, Ellis suffered a gunshot wound. Leveille was found guilty of first degree assault. At trial, there was some evidence that the defendant shot Ellis accidentally. The trial court rejected Leveilleís proposed jury instruction concerning accident, and instead gave its own accident instruction to the jury.

On appeal of his conviction, Leveille argued that the trial courtís instruction failed to clearly and accurately set forth that the State bore the burden of proving beyond a reasonable doubt that the incident was not an accident. The Court (Dalianis, J.) rejected this argument, finding that the instruction was not an unsustainable exercise of the trial courtís discretion. Although "accident" is not a recognized defense in New Hampshire, "an instruction on accident should be given if the theory is supported by some evidence." Here, the instruction defined "accident" as "something that occurs without intention or design and without the defendantís intending for it to occur." Further, the jury was instructed that if "the State has not proved, beyond a reasonable doubt, that Mr. Leveille acted with a requisite mental state [of knowingly], then you must find him not guilty." The Court concluded that a reasonable juror would have understood the instructions, and that the instructions "adequately and accurately explained each element of the offense and fairly covered the issues of law in the case."

Although the Court did not find that the trial courtís use of its own instruction was an unsustainable exercise of discretion, it did recommend that trial courts use New Hampshire Model Jury Instructions when practicable to avoid needless litigation. The Court also noted that the prosecutorís objection to giving any accident instruction was unwarranted given the evidence, and in view of settled legal principles.

Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State. Pamela E. Phelan, assistant appellate defender, Concord, on the brief and orally, for the defendant.

Family Law

In the Matter of Patricia Martin and Michael Martin
No. 2009-556
August 19, 2010
  • Whether the trial court erred by denying petitionerís request for permission to relocate to another state.
  • Whether the trial court erred by mandating neutral third party assistance before instituting further legal proceedings with respect to future parenting disagreements.
Petitioner Patricia Martin (the mother) and respondent Michael Martin (the father) are the parents of a son who was born prior to divorce proceedings instituted by the mother in September 2007. The family division denied the motherís request to relocate with her son to Rhode Island, stating in a parenting plan attached to the final decree that the mother is not permitted to relocate her son from New Hampshire and to a location further away from the father than she currently lives. The plan also included a provision regarding future parenting disagreements, wherein if the parents are unable to work out the disagreement in the best interest of the child, they "shall" seek neutral third party assistance, and only upon the inability to resolve the disagreement after seeking such assistance will they ask the court to decide the issue.

In the relevant provision of RSA 461-A:12, a parent seeking permission to relocate bears the initial burden of demonstrating, by a preponderance of the evidence, that (a) the relocation is for a legitimate purpose, and (b) the proposed relocation is reasonable in light of that purpose. When determining matters of child custody, a courtís overriding concern is the best interest of the child. However, to resolve the issue on appeal, the Court must also interpret RSA 461-A:12. The mother testified that her reason for relocating to Rhode Island is because she wants to "get away" from the father. The Court (Dalianis, J.) agreed with the trial courtís legal conclusion that the mother failed to carry her burden of demonstrating that she seeks relocation for a legitimate purpose, because wanting to "get away" is not a legitimate reason. The Court did not decide the correctness of the motherís argument that "legitimate" means that she must set forth a "subjectively legitimate reason," and that the court must then consider if the proposed location is objectively reasonable.

With respect to the future parenting disagreements provision, the mother argued that the requirement to seek the help of a neutral third party before petitioning the court violates her constitutional rights to due process and access to the courts. Under the State Constitution, all citizens have a right to the redress of their actionable injuries. However, reasonable regulations regarding the commencement of suits do not automatically violate this right. The Court found that the provision at issue imposes no specific requirement that the third party assistance be of any particular nature or duration, or that the third party must actually provide assistance. The Court accordingly concluded that the parenting plan provision does not impose a deleterious effect upon the motherís access to judicial relief because the provision permits either party to seek judicial relief as along as the parents first seek the assistance of a neutral third party.

Daniel C. Proctor, Concord, by brief and orally, for the petitioner. Puckhaber Law Offices, Concord, (Diane M. Puckhaber on the brief and orally), for the respondent.


Insurance One Beacon Insurance, LLC v. M&M Pizza, Inc.
No. 2009-533
August 19, 2010
Affirmed in part, reversed in part, and remanded
  • Whether the superior court erred in granting summary judgment for the plaintiff, and denying summary judgment for the defendant, in a lawsuit where the plaintiff seeks indemnification for payments made to the defendantís employee in a settlement arising from a slip and fall incident.
Defendant M&M Pizza owns and operates a franchise in Derry. In November 2002, an M&M employee slipped and fell behind the premises while on the job and while following M&M policies regarding employee parking. The employee suffered injuries, and sued M&Mís commercial landlord but not M&M. The landlord settled with the employee following mediation, which M&M declined to attend. Plaintiff One Beacon, the landlordís insurer and subrogee, paid the settlement, and subsequently brought suit against M&M seeking indemnification under M&Mís lease.

The Court (Duggan, J.) first agreed with the trial court that M&Mís lease requires it to indemnify One Beacon for the employeeís injuries because they were "circumstances growing out of the Ö use, occupation or operation of the leased premises." Because M&M offered delivery services to its customers, and because the employee was returning to the premises after delivering pizzas, the Court found a nexus between M&Mís operations and the employeeís injuries that triggered the indemnification provisions of the lease.

Next, M&M argued it cannot be bound by One Beaconís unilateral settlement because One Beacon did not give M&M the opportunity to approve the settlement or defend the case. The Court found that, absent notice and the opportunity to defend, One Beacon must demonstrate the landlordís actual liability to the employee, but if M&M was offered notice and an opportunity to defend, then One Beacon need only show the landlordís potential liability to the employee. The Court agreed with the trial court that One Beacon gave M&M sufficient notice and an opportunity to defend, but found that the trial court failed to require One Beacon to demonstrate potential liability. Accordingly, the Court remanded for determination of whether One Beacon has demonstrated the landlordís potential liability to the employee.

Orr & Reno, Concord, (Jeremy D. Eggleton on the brief and orally), for the plaintiff. Boyle, Morrissey & Campo, Manchester, (Thomas J. Fay and Andrew B. Ranks on the brief, and Mr. Fay orally), for the defendant.

Richard Brickley & a. v. Progressive Northern Insurance Company
No. 2009-389
August 19, 2010
  • Whether the trial court erred in finding that the term "motor vehicle" in the plaintiffís insurance policy was ambiguous and concluding that coverage was required.
A minor child of the plaintiff Richard Brickley was struck by an uninsured motorist while operating an all-terrain vehicle (ATV). Brickley sought a declaratory judgment that the defendant, Progressive, was obligated to provide coverage for medical payments and uninsured motorist coverage. The trial court ruled that the child is not an "insured person" and that Progressive is not obligated to provide medical payments coverage. The court also ruled that the term "motor vehicle" in the policyís household exclusion is ambiguous, and resolved the ambiguity in favor of the plaintiffs, requiring Progressive to provide uninsured motorist coverage.

The term "motor vehicle" is not defined either in the general definitions section of the policy or in the uninsured motorist coverage section, but it is defined in the medical payments coverage section as "a land motor vehicle designed for use principally on public roads." Progressive argued that because the term was not a specially defined word in the uninsured motorist coverage section, it should be given its common understanding, that being "any self-propelled, wheeled conveyance that does not run on rails." Under this definition, the ATV would fall under the household exclusion to the uninsured motorist coverage. Brickley argued that because Progressive chose not to define "motor vehicle," the term is susceptible of more than one reasonable interpretation, including that provided in the medical payments coverage section, which would not include the ATV because it was not designed for use principally on public roads, and therefore would not trigger the exclusion.

The Court (Conboy, J.) agreed with Brickleyís argument that this ambiguity should be construed in favor of coverage, citing the Courtís practice of construing ambiguities against the insurer, particularly when the language at issue is part of an exclusionary clause. Here, the Court found that a reasonable person in the plaintiffís position would conclude that the term "motor vehicle" had the same meaning in the uninsured motorist section as it did in the medical payments section. Furthermore, the Court pointed to a variety of dictionary definitions to demonstrate that there is not one common meaning of the term. Thus, "the insurer has created an exclusionary clause that is reasonably susceptible to different interpretations," and accordingly the Court "adopt[ed] the interpretation that favors the insured."

Mulvey Professional Association, Portsmouth, (Patrick A. Mulvey on the memorandum of law and orally), for the plaintiffs. Wiggin & Nourie, Manchester, (Gordon A. Rehnborg, Jr. and Mary Ann Dempsey on the brief, and Mr. Rehnborg orally), for the defendant.

Michael Mathaisel is an associate at Lando & Anastasi, LLP, in Cambridge, Massachusetts, and an alumnus of Franklin Pierce Law Center. His practice includes general patent counseling and prosecution, particularly in the areas of software and mechanical systems, drawing upon his substantial industry experience as a software engineer at Walt Disney World Resort.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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