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Bar News - September 16, 2011

NH Supreme Court At-a-Glance - August 2011

Administrative Law Ė
Appeal of a Fair Hearings Decision of the
Department of Health and Human Services

Petition of Patricia M. Kalar, No. 2010-456
August 11, 2011
  • Whether DHHS properly determined that certain expenses were not permissible deductions under federal regulations governing the Food Stamp Act
  • Whether DHHS was barred by collateral estoppel from disallowing certain expense deductions that it previously allowed petitioner to make
  • Whether DHHS was barred from disallowing certain expense reductions based on the doctrine of administrative gloss
  • Whether DHHS discriminated against the petitioner in violation of the Americans with Disabilities Act
Holding: A disabled childís private school tuition, expenses for transportation to the school, cell phone service, and extracurricular activities were not allowable excess medical expenses that could be deducted from the motherís income for the purposes of determining her eligibility for food stamps.

Disabled mother of disabled children petitioned for a writ of certiorari after the Department of Health and Human Services reduced her monthly food stamp allowance after determining she deducted improper items from her income as medical deductions. (A writ of certiorari being the only avenue for judicial review following a fair hearings decision by DHHS.) DHHS determined that petitioner could not deduct as "allowable excess medical deductions" private school tuition for her sons, cell phone expenses, school transportation expenses and extracurricular sports expenses. The applicable federal regulation, 7 C.F.R.(s)273.9(d)(3), does not permit deduction for these items.

The petitioner first argued that the expenses should be permitted; the Court disagreed.

The petitioner next argued that DHHS was barred by the collateral estoppel from disallowing the deductions, when in the past it had allowed them. The Court held that collateral estoppel did not apply, because the issue had not been "litigated." (The deductions had only been allowed by agreement of an employee of DHHS.)

The Court then analyzed the petitionerís collateral estoppel argument as if it were based on the "doctrine of administrative gloss." The Court found that this argument would also fail, in that lack of ambiguity in a statute precludes the application of said doctrine, and the state and federal statutes at issue were not ambiguous.

Finally, the petitioner argued that the DHHS decision subjected her to discrimination under the Americans with Disabilities Act by not making accommodations to ensure that people with disabilities had equal access to the food stamp program. The Court held that the petitioner was granted meaningful access to the program, and was not discriminated against.

Patricia Kalar, pro se, Petitioner. Michael A. Delaney, attorney general (Lisa M. English, assistant attorney general) for the State.

Insurance - Declaratory Judgment Re: Coverage

Yvette Boufard v. State Farm Fire & Casualty Company, No. 2010-303
August 11, 2011
  • Whether an agent may waive uninsured motorist (UM) coverage on behalf of the principal, in light of RSA 264:15 providing a right to such insurance unless rejected by the "named insured"
  • Whether the settled principles of agency law should apply to the rejection of UM coverage
  • Whether the evidence supported the trial courtís finding of an agency relationship
  • Whether the trial court improperly placed the burden of proof on the plaintiff rather than the insurer
Holding: Insured is bound by her husbandís representation to insurer to reject uninsured motorist coverage if he was acting as her agent at the time of rejection. The trial courtís finding of an agency relationship was supported by the evidence.

Petitioner and her husband decided to change insurance providers and went to purchase insurance from Yacyshyn State Farm Insurance in Concord. When they arrived at the building, it did not have wheelchair access, so petitioner could not enter the building. She told her husband to go inside and proceed with purchasing insurance for them. He purchased life, home, auto and an umbrella policy. For the umbrella policy, the husband (according to his testimony) intended to decline uninsured motorist coverage only for recreational vehicles and told the agency representative so, but the representative mistakenly checked the box declining it for all vehicles. The insurance representative gave the petitioner all of the applications and the opportunity to review them. Although the husband signed them, the petitioner never did.

Petitioner and her husband were injured in a car accident two years later. Petitioner was seriously injured. After collecting from the tortfeasor and her uninsured motorist policy on her automobile policy, she made a claim for uninsured motorist coverage on the umbrella policy. State Farm denied the claim because the coverage did not exist as the husband rejected it at the time of the application. Petitioner brought a declaratory judgment action against State Farm. The trial court ruled that the husband acted within his agency when he signed the insurance applications, and his rejection of uninsured motorist coverage on the umbrella policy was binding on her.

The Petitioner argued to the Court that her husbandís rejection of UM coverage on her behalf was ineffective as a matter of law, in that RSA 264:15 requires that UM coverage be provided "unless the named insured rejects such coverage."

The Court rejected the argument that the common law principles of agency did not apply to the issue of rejecting UM coverage. The Court pointed to a lack of legislative intent for RSA 264:15 to alter common law agency principles. Further, the Court upheld the trial courtís finding that an agency relationship existed between the petitioner and her husband based on implied actual authority.

Finally, the Court found that the petitionerís assertion that the trial court had improperly shifted the burden of proof as to the existence of coverage (such burden resting squarely with the insurer under well-settled case law) was without merit.

Andru H. Volinsky and Christopher G. Aslin, Bernstein Shur, P.A. for the plaintiff. Gordon A. Rehnborg, Jr. and Mary Ann Dempsey, Wiggin & Nourie, P.A., for the defendant.

Family Law Ė Motion for Judicial Disqualification

In the Matter of Erica Tapply and Benjamin Zukatis, No. 2010-263
August 11, 2011
  • Whether a judge has erred in refusing to recuse himself
  • Whether the judge used the correct, objective standard as to the appearance of impartiality in determining whether to disqualify himself
  • Whether, assuming, arguendo, that an ex parte communication has occurred, the disqualification of the judge who either initiated it or received it is required
Holding: A judge in a custody dispute did not err by failing to recuse himself after the petitioner complained about him to the Judicial Conduct Committee, and he responded to her allegations and the JCCís concerns in writing. Also, judicial remarks that are critical or disapproving of, or even hostile to, counsel, the parties or their cases, ordinarily do not support a bias or partiality challenge.

In August of 2005, Tapply (mother) filed a petition for custody against her sonís father (Zukatis) because she suspected that the father had sexually abused their son. Although the petition was initially granted on a temporary basis, over time, and in consideration of a Guardian Ad Litemís initial report, the trial court court (Lynn, J.) gradually expanded the fatherís ability to have supervised visitation with his son. Zukatis had weekly supervised visits with his son from October 2006 through March 2008.

In March of 2008, Tapply refused to produce the child for a supervised visit with his father. In response to a motion for contempt filed by Zukatis, Judge Lynn concluded that Tapply had "no justifiable excuse for failing to produce" the child for his scheduled visit with his father.

Tapply also made repeated complaints of abuse to DCYF; DCYF closed its investigation in December of 2008 with a determination that the complaints were unfounded.

On January 5, 2009, Judge Lynn issued an order which included the statements that there was cause to view Tapplyís allegations "critically.í Based, in part, on this, Tapply filed a motion to recuse on January 13, 2009. Judge Lynn subsequently denied the motion.

A final hearing on the custody and support petition was held in March of 2009; Judge Lynn issued the final order in May of 2009. It concluded that it was in the best interest of the child to be restored to a normal relationship with Zukatis as soon as possible.

In September of 2009, Tapply filed a grievance with the Judicial Conduct Committee ("JCC"), alleging bias and prejudice against her by Judge Lynn.

On September 23, 2009, Tapply brought her son to the hospital over concern about an alleged sexual assault by Zukatis. Subsequently, she filed a an ex parte motion to suspend Zukatisí parenting time based on the alleged assault.

Judge Lynn presided over a hearing on the merits. He concluded that there was no "credible evidence" that Zukatis had abused the child on September 23, 2009.

On October 6, 2009, Tapply filed a second grievance against Judge Lynn with the JCC. Tapply subsequently took her son to other medical providers, alleging sexual abuse. Although the JCC dismissed the two grievances, it wrote a letter to Judge Lynn expressing concern about the "strident" tone taken with Tapply at hearings and in issuing his final conclusions.

On January 26, 2010, Judge Lynn issued an order that increased Zukatisí parenting time, finding that Zukatis had "at all times conducted himself properly and appropriately during his parenting time . . ." On the same date, Tapplyís attorney filed another grievance with the JCC, averring that Judge Lynn should have recused himself due to an appearance of impartiality in the wake of what was referred to as the "letter of caution" from the JCC to Judge Lynn. The JCC declined to take further action; Tapplyís attorney filed an amendment to the prior grievance, adding allegations of "ex parte communications." The JCC dismissed the final grievance, finding no misconduct.

On February 7, 2010, Tapply filed a motion for "judicial disqualification", which was denied. The appeal followed.

The Court disagreed with the argument that Judge Lynnís partiality could reasonably be questioned because he had received a "letter of caution" from the JCC; the Court concluded that the JCC lacked the authority to issue such a letter. Because the grievance was dismissed and not docketed as a complaint, the JCC could not take any action under the procedures established by Supreme Court Rule 40.

The Court also held that, despite Judge Lynnís stern tone, which he asserted was necessary to impart the courtís concerns for Tapplyís unreasonable behavior, Judge Lynn was merely fulfilling his duty as the finder of fact.

The Court also concluded that Judge Lynn had used the correct objective standard in determining whether recusal or disqualification was appropriate.

Finally, even assuming, arguendo, that communications between Judge Lynn and Howard Zibel, general counsel for the New Hampshire Judicial Branch, concerning the Tapply case were ex parte communications, they did not rise to the level requiring judicial disqualification because the communications did not involve a discussion of the merits of any issue in the case, nor did the communications adversely affect Tapplyís case, nor was there any evidence that Judge Lynn relied on the communications in making his rulings.

Katherine B. Stearns, for the petitioner. Timothy E. Bush, Wilson, Bush, Durkin & Keefe, P.C., for the respondent.

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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