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Bar News - February 19, 2014


New Issue of New Hampshire Bar Journal Available Online

The Fall/Winter issue of the NH Bar Journal is now online and available for purchase as a printed copy. View the table of contents or download the entire issue (PDF).

We feature several articles on insurance- and tort-related topics in this issue, along with two historical articles. Our next issue, being developed in conjunction with the NHBA Health Law Section, will look at many aspects of the rapidly unfolding legal landscape in this dynamic area, with, obviously, a focus on the Affordable Care Act. However, we will also be accepting articles on other topics. Please send indications of your interest in writing to Bar Journal Editorial Board Chair Matt Serge or Bar Association Communications Director Dan Wise.

In the latest issue:

ERISA: US Airways v. McCutchen: When Is It Appropriate For A Plan To Take It All?
By Francis G. Murphy
A decision by the United States Supreme Court issued April 16, 2013, US Airways v. McCutchen, clarified the extent to which a self-insured health insurance plan can recover payments it made on behalf of the insured when the insured person has received payments based on a successful liability claim against a third party.

McCutchen indicates that unambiguous language in a self-funded plan, subject to provisions of federal law under ERISA, may well require full reimbursement of the self-insured plan, even if this leaves the beneficiary with no net recovery from his or her personal injury claim. However, if the insurance plan language is ambiguous in certain areas, it may be possible for the injured plaintiff to limit the insurer’s recovery under offsetting protections under state and/or federal law.

This article provides a primer on ERISA law and how it applies to self-funded health insurance plans, describes the findings of the McCutchen ruling, and then explores subrogation and reimbursement under New Hampshire law, as well as federal case law on similar subrogation questions, and, finally, looks at some of the ethical questions lawyers may face with regard to the handling of settlement finds they receive that are subject to recovery by an ERISA self-funded plan. Read the article.

An accompanying checklist for practitioners considering such cases provides a pathway for avoiding traps for the unwary.


Child Hit by Drunk Driver on Street is an Occupant of School Bus for Coverage Purposes
By Heather V. Menezes
This article examines the case law regarding a situation when a school bus passenger is hit by an uninsured drunk driver on the street while walking from the bus to an area of safety. Is the accident victim still considered an occupant of the bus for insurance recovery purposes, and under what circumstances? Read the article.


The Supreme Court’s Dichiara Decision Expanding Municipal Immunity
By Jason Major
The author takes a strong stance that a recent NH Supreme Court decision narrowly reads that tort claims against municipalities are limited to vehicles and premises owned by towns and counties. As a result of the Dichiara ruling, he argues, municipal employees could become the sole defendants in future cases involving municipal torts. Read the article.


The History of the Involuntary Commitment Statute in New Hampshire
By Dr. Alexander de Nesnera and Hannah Baldwin
The medical director of the New Hampshire Hospital, in consultation with a University of New Hampshire School of Law student and with the assistance of Circuit Court Deputy Administrative Judge David King, traces the evolution of laws regarding involuntary commitment in New Hampshire, reflecting changes in attitudes towards mental health patients, treatment advances, and views on rights to counsel. The article also features historical photographs of the state’s major mental health institution. Read the article.


Rollinsford Revisited: The Diary of Young Charles Doe
By Jay Surdukowski
Combining his knowledge of Judge Charles Doe, considered by many the state’s greatest judge, the author explores the diary entries kept by Doe as a law student in his early 20s. Doe wrote extensively during an intense two-year period, sharing his thoughts and his “adventures.” The article provides historical context and insights into some of Judge Doe’s landmark opinions. Read the article.


Lex Loci
By David Ruoff
This review of opinions issued last summer and fall is marked by several cases where the result hinges on whether one takes a narrow or expanded view of the meaning of a word or phrase. Among the questions answered: When do two real estate lots become considered as one?

In the context of a statute’s wording, when is a gun considered “loaded”? and what does “protracted” mean in the context of a loss or impairment of health or a bodily function? The opinions reviewed range from criminal law, real property law, civil actions, and the appeal of an administrative law tribunal. Read the article.


The New Hampshire Bar Journal is a periodic online publication of the NH Bar Association that provides in-depth articles written by both members and nonmembers.

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