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Bar News - January 14, 2011

Four New Laws Affecting New Hampshire Litigators


Keeping up with changes in the law is a constant challenge for litigators. In its most recent session, the NH legislature passed four new laws. They concern: 1) RSA 498, Insurance Coverage Disclosure in Tort Cases; 2) amendments to 2010 session laws, in particular, recovery of medical expenses by the state; 3) amendments to the subrogation provisions of RSA 507; and 4) amendments in the area of workers’ comp (RSA 281). Details of these changes follow.

RSA 498:2-a

First, Chapter 297 enacted changes to RSA 498:2-a that will become effective on January 1, 2011. This section was repealed and reenacted to read:

Insurance Coverage Disclosure in Tort Cases. At any time after suit for negligence and an appearance on behalf of the defendant have been filed, the named defendant, or his or her insurance carrier if he or she is insured as to the claim, shall disclose only to the claimant or his or her counsel the policy limits of the policy or policies of all liability insurance applicable to the defendant as to such claim.

The previous version of the statute provided for disclosure of insurance policy limits, but left the decision of whether to require such disclosure up to the discretion of the trial court, and then only "if the court feels it would assist in settlement of the case." While disclosure under the old version of the statute was only supposed to occur "on motion," and with the court’s specific approval, most superior court structuring order forms have historically had a line requesting that the parties voluntarily choose a deadline for disclosure of policy limits. The amendment to RSA 498:2-a will now make the disclosure of policy limits automatic and much more timely.

RSA 167:14-a

Resources for Litigators

Check out Legal Links at for the heading, "NH Practice Guidelines."

Under NH Practice Guidelines, you ‘ll find a variety of practical tools and aspirational guides for attorneys. In addition to links to the Rules of Professional Conduct, the page connects you to the NH Litigation Guidelines, formally adopted by the NHBA in 1999.

In part, the preamble to the Guidelines states:

"The guidelines represent a means of maintaining civility in New Hampshire trial practice. While certain of these Litigation Guidelines do not have the force of law or court rule, Bar members are encouraged to incorporate the spirit of the guidelines into their legal practices. These guidelines are intended to proclaim that conduct that may be characterized as uncivil, abrasive, abusive, hostile or obstructive, impedes the fundamental goal of resolving disputes rationally, peacefully and efficiently. Such conduct tends to delay and often to deny justice."

Also, you can find sample motion forms and model fee agreements, as well as drafts of new procedural rules pending approval before the NH Supreme Court.

The page also links you to ordering information for the NH Practice & Procedure Handbook, a publication of the NHBA CLE Department that provides advice on a variety of practice areas and is regularly updated.

"My Declaration of Commitment to Clients," is a certificate, suitable for presentation to clients, that demonstrates your commitment to professionalism in all of your dealings.

Next, Chapter 15 of the 2010 Session Laws, amending RSA 167:14-a, III-a and IV, took effect on May 7, 2010. The amendments to these sections provide that the Commissioner of Health and Human Services may recover the full amount of medical assistance furnished by the state from the portion of any settlement of a case or judgment "reasonably attributable to medical expenses." Prior to the 2010 amendments, in cases where a complete recovery was not possible, RSA 167:14,-a, III-a only permitted a recipient to receive ten (10) percent of the net settlement (i.e., less attorneys’ fees, liens and litigation costs) while the State would recover the remaining amount as repayment of medical assistance. Under the amended act, the recovery by the state has to be reasonably attributable to medical expenses and full reimbursement is no longer required. In the event that there is a dispute about the amount the superior court or the district court where the claim "could have been commenced" has broad discretion to equitably apportion the amount withheld from the settlement "as justice may require."

RSA 507

In a related vein, the subrogation provisions of RSA 507 were amended through legislation sponsored by Representative David Nixon and others. Chapter 364:1 took effect on January 1, 2011, as RSA 507:7-j, and provides that when there is a subrogation claim made pursuant to an insurance contract for reimbursement of medical expenses from a plaintiff who has recovered against a third party, the court in which the action is pending will order division of attorney’s fees and the medical lien between the plaintiff and the insurance carrier and the medical provider "as justice may require." The above-described amendments to RSA 167:14-a and RSA 507:7-j should bring about an element of equity and fairness to what has historically been a problem area of overreaching by lien holders.

RSA 281-A:38

Finally, in the area of workers’ compensation, amendments to RSA 281-A:38 provide an injured employee with the right to have a witness present during so-called "independent" medical examinations (IMEs). It is no secret that IMEs are actually defense medical examinations as the examining doctor is picked by defense counsel, not an independent entity. Having recognized this problem with the IME process, the legislature has now provided that a witness may be present during the examination by defense counsel’s doctor, and shall have the right to take notes and observe on behalf of the injured employee as long as he/she does not interfere in the examination.

Notably, the new language added to RSA 281-A:8, II states that the witness present is "not limited to" merely taking notes or observing, thereby opening the door for audio or video recording of the examination. The injured employee does have to sign an authorization acknowledging that he or she is waiving privacy rights under the circumstances, so that his/her medical situation may be discussed in front of that nurse paralegal, paralegal, attorney, or other witness present on his/her behalf. This provision in Chapter 227 took effect on January 1, 2011.

Jason Major is an attorney with Douglas, Leonard & Garvey in Concord. He has been with the firm since 2001. His practice concentrates on personal injury, employment law, civil rights, and consumer class action litigation.

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