The justices declined to answer the New Hampshire House of Representatives request regarding whether HB 112 would violate any other provisions of the United States or New Hampshire Constitution, citing the Court’s historic stance on declining to answer general constitutional inquiries.
Regarding whether HB 112 would violate Part 1, Article II of the New Hampshire State Constitution, the Court requests to be excused from answering based on a consideration of their constitutional duties and prior decisions.
The Court states that advisory opinions can only be rendered in “carefully circumscribed situations.” Duncan v. State 2014. The Court highlights that such a situation extends only to proposed legislation. Id. The Court highlights that its opinion doesn’t “constitute binding precedent” (State v. Ploof 2011) and that they cannot resolve questions of fact. Opinion of the Justices (School Financing) 1998.
The Court states that a case is currently pending before it that raises similar legal issues to this opinion, Annemarie Guare & a.v. State of New Hampshire, No 2014-0558, and to answer the House’s question would “place [the Court] in a position of giving advice on issues without a developed factual record and in advance of a decision on a matter currently before the Court that involves similar issues.” Opinion of the Justices (Appointment of Chief Justices). Furthermore, the Court reasoned answering the question wouldn’t establish precedent and wouldn’t be binding when deciding Guare.
- Whether the trial court erred in granting summary judgment related to insurance coverages?
The petitioner, who owns a motorcycle in New Hampshire and carries UIM coverage for $250,000 on that motorcycle policy (Progressive) and a $1 million umbrella policy with a single limited UIM coverage (Commerce), was a passenger in a motorcycle accident in New Jersey.
The motorcycle on which the petitioner was passenger had $250,000 in UIM coverage from Foremost. The operator that struck the petitioner had $100,000 of insurance per person with Allstate. The petitioner’s New York attorney, citing New York law, which did not apply to the insurance companies, informed the insurance companies that the petitioner was pursuing a UIM claim and that they were required to grant permission for the petitioner to collect the $100,000 from Allstate or to pay the petitioner that amount. Only Commerce (the umbrella policy) responded with permission to settle.
After six years, the petitioner sued Foremost, Progressive and Commerce in New York, and ultimately the claims were dismissed. The trial court determined that against Foremost, New Jersey law applied, and the suit was untimely. The trial court determined that Commerce “dropped down” to provide primary insurance, even though they were excess insurance, and that, pursuant to the umbrella policy, they were required to provide coverage once damage exceeded primary coverage that is actually available. Finally, in relation to the Progressive coverage, the trial court determined that the petitioner forfeited coverage by settling without consent.
First, the Court examined whether the trial court erred in applying New Jersey law to the petitioner’s UIM claim under the Foremost policy. Because the cause of action did not arise in New Hampshire, Foremost is not a New Hampshire resident, and the petitioner was not a New Hampshire resident when the UIM claim was denied, traditional choice-of-law considerations are balanced. Waterfield. Because the parties did not challenge the trial court’s analysis, the Court upheld the determination that New Jersey law applies. Therefore, the UIM claim against Foremost is time-barred by the New Jersey statute of limitations.
Next, the Court examined whether the trial court had erred in concluding that the petitioner had forfeited her right to excess coverage from Progressive, where the policy contains a consent-to-settle provision, by settling prior to obtaining consent, because Progressive’s silence 90 days after notification by the petitioner did not constitute a waiver.
The Court agreed with the trial court. A failure to respond does not constitute an implied waiver, because an implied waiver is “predicated upon acts or conduct of the insurer after knowledge of a breach, tending to show recognition of the validity of the policy and intent to relinquish the right to avoid it for the known breach.” Ginola v. Continental Cas. Co 2003. Therefore, the Court agreed with the trail court that the petitioner waived her right to excess coverage from Progressive.
Finally, the Court examined whether the trial court erred in finding that Commerce “dropped down” to provide primary coverage pursuant to an “other insurance” provision of the Commerce auto policy. The petitioner and Commerce were at odds over the interpretation of the policy language in this instance.
The Court looked at the plain and ordinary meaning of the contract itself, and at how other jurisdictions construed similar clauses, to determine whether the terms “excess insurance,” “other insurance,” “available,” and “collectible” are ambiguous, and how best to interpret those terms.
Here, the Court found the facts of Vrabel-Kilby instructive in determining that as used in the “other insurance” clause at issue, the words “available” and “collectible” do not create an ambiguity. The Court determined that the purpose of the other insurance clause would be “meaningless if the insured can bypass the coverage provided by the primary carrier and seek relief from the excess carrier”; they must first recover from other collectible insurance. Therefore, the Court reversed the trial court finding. Commerce was not required to pay the petitioner’s damages until they exceeded $250,000 as per the policy.
Gordon A. Rehnborg Jr., McDowell & Osburn, on the brief and orally for the petitioner. Kevin Truland, Morrison Mahoney, of Boston, Massachusetts, on the brief and orally for Commerce Insurance Company. Donald L. Smith, Devine, Millimet & Branch, of Manchester, on the brief and orally for Foremost Insurance Company. Naomi L. Getman, Getman, Schulthess & Steere, of Manchester, on the brief and orally for Progressive Northern Insurance Company.
Doug Mellin & a. v. Northern Security Insurance Co.
April 24, 2015
Vacated in part, reversed in part and remanded
- Whether the trial court erred in granting summary judgement denying insurance reimbursement for losses related to the odor of cat urine
Northern Security Insurance Company denied the petitioner coverage under a policy related to the odor caused by urine from their downstairs neighbor’s cats. The odor was such that building inspector had the petitioner move out to remediate the odor. Due to the odor, the petitioners were unable to rent the unit and eventually sold it for less than other comparable condominiums. The petitioner filed suit, and the trial court agreed with Northern that Coverage A and D, excluded coverage. An appeal followed, and the Court reviewed de novo.
First, “the plaintiffs argue that the trial court erred by concluding that they were not entitled to coverage under the Coverage A endorsement because they did not suffer a “physical loss” to the property.”
The Court agreed with Northern that the terms “direct” and “physical loss” are undefined, but was unpersuaded by Northern’s restricted reading of “physical loss” and found that “physical loss” can “encompass changes that are perceived by the sense of smell.”
These changes, however, must be distinct and demonstrable. Evidence that a change rendered the insured property temporarily or permanently unusable or uninhabitable may support a finding that the loss was a physical loss to the insured property. Therefore, the Court vacated the trial court’s decision and remanded the case for consideration under this standard.
Next, the Court considered whether the trial court erred in concluding the pollution exclusion clause precludes coverage. The Court found that the terms of the clause are not ambiguous, but that when the definitions are applied “in a purely literal interpretation,” it could stretch the “intended meaning” and “lead to absurd results contrary to any reasonable policy holder’s expectations.” Nautilus Ins. Co., Century Sur. Co. v Casino W., Inc.
The Court held that the terms “any irritant or contaminant” were too broad and not effectively defined in the policy. Therefore, they considered the overall policy, including the exclusion in interpreting the term pollutants.
The threshold issue is “whether two parties can reasonably disagree about the meaning of the exclusion clause, rendering it ambiguous.” Barking Dog. The Court examined other jurisdictions’ findings on this issue, which are conflicting. The Court focused on the non-industrial nature/source of the smell, determined that the policy exclusion was ambiguous as applied here and did not preclude coverage for the petitioner’s claims and reversed the trial court’s decision.
NH Supreme Court Justice Robert Lynn, joined by Chief Justice Linda Stewart Dalianis, dissented on this issue. Justice Lynn stated that cat urine was a “contaminant” under the plain and ordinary meaning of the word and, therefore, unambiguously a “pollutant” under the policy.
He reasoned that just because the term is broad does not make it ambiguous. Justice Lynn wrote, “Denying coverage here might be thought to produce an unfortunate result, but in my view, it is the result that a correct application of the law demands.”
Finally, the Court considered the issue of Coverage D, related to “loss.” Based on the language of the clause, the Court found that a plaintiff is entitled to recover under Coverage D if the losses are covered under Coverage A. Coverage A is dependent on whether there is a “physical loss.”
Because the Court vacated the trial court’s decision that the plaintiffs did not suffer a physical loss under Coverage A, they also vacated the holding that Northern is entitled to a judgment as a matter of law related to Coverage D and remanded for further proceedings.
Keriann Roman, Drummond, Woodsum & MacMahon, of Portsmouth, on the brief and orally, for the plaintiffs. Gary M. Burt, Primmer, Piper, Eggleston, & Cramer, of Manchester, on the brief and orally for the defendant.
The State of New Hampshire v. Michael Addison
April 30, 2015
- Whether the sentence of death was excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant
The Court provided a brief history setting forth the parameters for the proportionality review for death penalty sentences under RSA 630:5, XI(c), highlighting that this review is complicated by the lack of death penalty convictions since the adoption of the statute in 1977.
Therefore, the Court included for review published opinions from other jurisdictions “to the extent they would be meaningful” in determining whether the death sentence imposed is “aberrational… with respect to similar cases.” Gregg v. Georgia (1976).
The defendant asserted that the Court should reassess three areas of the Proportionality Framework decision. The Court agreed to consider unpublished opinions available on either Westlaw or Lexis to the extent those decisions contain sufficient information and are meaningful for the purposes of the comparative review.
In relation to mitigating factors, the Court declined to limit the case review, because mitigating factors “don’t exist in every case and the absence of such factors does not render an otherwise similar case meaningless to [the court’s] review.” Finally, the Court declined to change the manner of analysis of the comparison. “The plain language of RSA 630:5, XI(c) anticipates that we conduct comparative proportionality review in a fact-specific manner by ‘considering both the crime and the defendant,’ and that the precedent-seeking approach to comparative proportionality review ‘accords with the individualized sentencing considerations that juries are required to engage in when deciding whether to impose the death penalty.’”
The defendant and the State disagreed about parameters for “similar cases.” The Court held that in-state examples would be the best, but in absence of such cases, considering out-of-state cases is necessary. The Court focused on the cases the State identified from four jurisdictions where a defendant can be charged with capital murder for “intentionally or knowingly… or purposely or knowingly” killing a law enforcement officer in the line of duty and isn’t persuaded by the defendant’s attempts to negate the State’s cases because those cases most closely fit the parameters laid out in the Proportionality Framework.
The Court found that its function is to “identify aberrant death sentences, not to search for proof that a defendant’s sentence is perfectly symmetrical with the penalty imposed in all other similar cases.” Proportionality Framework.
Therefore, under RSA 630:5, XII(a), the defendant’s death sentence was affirmed, because the Court held that, in this case, the defendant’s sentence is “not excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” RSA 630:5,XI(c).
Jeffrey A. Strelzin, senior assistant attorney general, Joseph A. Foster, attorney general, orally for the State. John J. Kennedy, assistant attorney general, Joseph A. Foster, attorney general, on the brief for the State. Christopher M. Johnson, chief appellate defender, on the brief, and David M. Rothstein, deputy director public defender, orally for the defendant.
In the Matter of Valentina Conant and William Faller
April 30, 2015
Affirmed in part, reversed in part
- Whether the trial court erred in its orders concerning child support arrearages and other expenses
In March 2012, a daughter was born to unmarried parents, whose paternity was established in May 2012. In March 2013, a temporary parenting plan was issued, which was then finalized in October 2013.
In a separate order, the court ordered the father (the respondent) to pay the petitioner child support arrearages of $4,587, from the date of the child’s birth to the date the respondent began paying court-ordered child support. Additionally, the respondent was ordered to pay $2,303 for “70 percent of her lost time from work incurred in her prenatal care and illness, as well as delivery of the parties’ child.” RSA 168-A:1. Both parties unsuccessfully appealed.
Neither party challenges child support payments after paternity was established. However, the respondent challenges the amount of arrearages between the birth and when paternity was established and the other amount awarded by the court.
In relation to the other amount, the Court focused on the word support in RSA 168-A:3 and determined that it related to child support and not pregnancy and confinement expenses, and therefore upheld the trial court’s award for $2,303 for “lost time from work.”
In relation to child support arrearages, the Court focused on the statutory language of RSA 168-A:3-a and RSA 168-A:1 and held that the trial court erred in awarding child support from the child’s birth until the respondent was served with the petitioner’s motion to establish paternity and reverses that portion of the trial court’s order.
Randall E. Wilbert, Law Offices of Randall E. Wilbert, of Nashua, on the brief for the petitioner. Albert Hansen, Bosen & Associates, of Portsmouth on the brief, for the respondent. George R. LaRocque Jr., guardian ad litem, of Hudson, on the brief for himself.
Intellectual Property Law
CaremarkPCS Health, LLC v. New Hampshire Department of Administrative Services
April 30, 2014
- Whether the trial court erred in ruling that certain information constituting trade secrets under the New Hampshire Uniform Trade Secrets Act (UTSA) RSA Ch. 350-B, is exempt under the Right-to-Know Law, RSA Ch. 91-A.
The State issued a request for proposals (RFP) for a pharmacy benefit management service for which Caremark submitted a bid and subsequently negotiated a contract.
The bid and the contract contained statements regarding confidential, proprietary information that were trade secrets of Caremark. Caremark was informed by the NH Department of Administrative Services that it had received requests to inspect and copy the bid and final contract. Caremark responded that certain information was exempt from disclosure under the Right –to-Know Law and filed a petition for declaratory and injunctive relief to enjoin the disclosure of certain information, which was granted by the trial court. The Department of Administrative Services appealed.
The parties disagreed about the standard to be used to resolve the issue. The Court determined that the issue to be resolved was whether the information at issue was exempt from disclosure under RSA 91-A:4, I or “otherwise prohibited by statute.”
First, the Court looked at the Right-to-Know Law, whose purpose is “public access… of all public bodies and their accountability to the people.” 38 Endicott St. N. v. State Fire Marshall (2012). “Caremark has the burden of demonstrating that the designated information is exempt from disclosure.”
Next, the Court looked at the Uniform Trade Secret Act (UTSA), focusing on “misappropriation” of trade secrets, examining in turn, each party’s argument. The Court focused its attention on the department’s arguments and the language of the RFP that the State “agrees to maintain confidentiality of portions of the proposal that [are] clearly and properly marked confidential” in finding that the department “knew or had reason to know that [its] knowledge was a trade secret.” RSA 350-B:1, II(b)(2). The Court also focused on “consent” and determined that Caremark neither expressly nor impliedly consented to disclosure, holding that disclosure constituted “misappropriation” under UTSA.
Finally, the Court addressed whether the “misappropriation” fell within the “otherwise prohibited by statute” exemption of RSA 91-A:4, I. The Court discussed the UTSA in-depth and held that because the disclosure of Caremark’s confidential information by the department was “misappropriation” of trade secrets under the UTSA, it is prohibited by statute under RSA 91-A:4 and therefore exempt from disclosure under RSA 91-A:4, I.
The Court then looked at other jurisdictions’ treatment of trade secrets under public disclosure laws, focusing on the Supreme Court of Washington, which held public disclosure laws are “an improper means to acquire knowledge of a trade secret.” Animal Welfare Soc. V. Univ. of Wash (1994). Therefore, the Court affirmed the trial court’s decision.
Daniel J. Mullen, Ransmeier & Spellman, of Concord on the brief for the petitioner. John F. Zabriske, Foley & Lardner, of Chicago, Illinois, on the brief and orally for the petitioner. Richard W. Head, associate attorney general, Joseph A. Foster, attorney general, on the brief and orally for the respondent.
Raymond Choquette & a. v. Jason Roy; Raymond Choquette & a. v. Thomas Robichaud & a.; Raymond Choquette & a. v. Phillippe E. Roy & a.
April 3, 2015
Affirmed in part, reversed in part, remanded
- Did the trial court err in granting an easement?
- Did the trial court err in concluding that the dominant estate holder could not maintain the right-of-way?
- Did the trial court err in denying a deed reformation request?
- Did the trial court err in denying a fee requested based on a claim of breach of warranty deed?
The petitioner purchased land in Pittsburg. At different times, parcels were conveyed subject to restrictive but not uniform covenants. In 1999, the petitioner sold a tract to P.E. Roy. The deed to this parcel had two easements over the petitioner’s land and specified who bore construction and maintenance costs.
P.E. Roy performed maintenance on the roads. The petitioner objected to these repairs and interfered with his use. In 2002, the petitioner filed an application for registration of a subdivision, containing restrictive covenants, which were later recorded in the Coos County Registry of Deeds without any restrictive covenants.
In 2004, parcels were sold separately to the Robichaud’s predecessor-in-title, and to P.E. Roy, as trustee of the George M. Roy Trust, by warranty dead with restrictive covenants that were “substantially and materially different” from the application covenants.
In 2011, the petitioner notified the Robichauds and Jason Roy regarding amending the deeds with the application covenants, to which they objected. The petitioner later filed a claim to reform the deeds. Additionally, the petitioners filed a claim for declaratory relief against P.E. Roy to prohibit him from using and maintaining Sugar Shack R.O.W. and from maintaining Roy Boulevard. The trial court consolidated the actions.
Following a bench trial, the trial court declined to reform the deeds. Regarding the declaratory relief, they concluded that P.E. Roy has the right to travel across Sugar Shack R.O.W. to access his parcel, but “has no right to maintain or interfere with the road” and that Roy Boulevard is “a common right-of-way that the adjacent landowners may agree to maintain by sharing the costs and responsibilities,” and that the petitioners “have no independent right to maintain Roy Boulevard.”
First, the Court looked to determine if the trial court erred in granting P.E. Roy an easement over Sugar Shack R.O.W. The Court determined that the trial court had looked at the purchase and sale agreement and the deed, and while they recognized the deed did not include granting language, because of the doctrine of merger, the purchase and sale agreement was extinguished.
The Court determined that although not expressly stated by the trial court, the trial court had found an easement by implication. The Court held that whether there was an easement by implication is a question of fact for the trial court and that because “a reasonable person could have reached the same conclusion,” the Court would not disturb the trial court’s finding. The Court found that the petitioner failed to demonstrate that the trial court erred in granting an easement by implication.
Next, the Court looked to determine whether the trial court erred in concluding the dominant estate holder could not maintain Sugar Shack R.O.W. The Court agreed with P.E. Roy that the trial court erred.
The trial court had determined that P.E. Roy had a right to travel, but not a right to maintain the easement. The trial court had highlighted that the deed didn’t address Sugar Shack R.O.W., and the parties didn’t address its maintenance. Therefore, the Court determined that common law regarding easement maintenance governs, and P.E. Roy had the right and duty to maintain his easement.
Additionally, the Court noted that the petitioner’s maintenance of the Sugar Shack R.O.W. didn’t affect P.E. Roy’s right to maintain. The Court determined that because the trial court erred, the issue of whether P.E. Roy’s maintenance interfered with the “rights of the petitioner’s or other users of the easement” was never reached and remanded that issue for further proceedings.
Then, the Court looked at whether the trial court erred in denying the petitioner’s request to reform the deeds held by the Robichauds and Jason Roy. The petitioners had the burden, and were unsuccessful in demonstrating reversible error. Gallo v. Traina (2014).
Finally, the Court addressed the question of whether the trial court erred in denying the respondents’ request for attorney’s fees and costs in defending their warranty deeds. This is a question of statutory interpretation.
In New Hampshire, absent statutory exceptions, parties pay their own attorney fees and costs. Appeal of Local Gov’t Ctr. (2014). The respondents argue that the exception in RSA 477:27 applies and that they were entitled to attorney fees and costs because the petitioners failed to defend their warranty deeds.
The Court addressed each respondent separately. The Court found that attorney’s fees and costs were not warranted to P.E. Roy because none of the covenants in RSA 477:27 were involved. Next, the Court considered Jason Roy’s and the Robichauds’ arguments that the petitioner’s actions against them constituted a challenge under RSA 477:27, that the properties are “free from all encumbrances, excepted as stated.” RSA 477:27.
The Court contrasts a claim for breach of a covenant and a reformation action, which are qualitatively different. The Court held that this case is a reformation action, that RSA 477:27 “doesn’t authorize attorney’s fees” for a reformation of a deed, and that the trial court did not err in denying recovery.
Christopher T. Meier, Cooper, Cargill, Chant, of North Conway, on the brief for Raymond and Pamela Choquette. John L. Riff, IV, of Lancaster, by brief, for Jason Roy, Thomas and Kelly Robichaud, and Phillippe E. Roy.
JP Morgan Chase Bank, NA v. Heilan Grimes
April 7, 2015
- Whether a property owner’s desire to market, sell and/or convey property in a vacant condition constitutes “good cause” for terminating a tenancy under RSA 540:2, II(e)
JP Morgan Chase acquired the property in foreclosure and served the defendant with an eviction notice pursuant to RSA 540:2, for “other good cause.” The trial court ruled for the plaintiff, and the defendant appealed, arguing that the statutory language “other good cause” was ambiguous and that prior case law and legislative intent do not “encompass the reason proffered by the plaintiff.”
The Court examined the statutory meaning of language in RSA 540:2,II(e), and determined that the plain language of the statute does not indicate whether a desire to market or convey property in a vacant condition constitutes “other good cause.”
Therefore, the Court looked at legislative intent, which was to evict tenants for a good but not arbitrary or ill-motivated reason. N.H.S. Jour. 157 (1985). The Court looked to the findings of other jurisdictions for help in determining that the “desire to sell a property [acquired via foreclosure] free and clear of tenants” constitutes a valid economic interest and is not arbitrary or ill-motivated. The Court held that in the absence of selective eviction or other acts of bad faith, that the eviction satisfied the statute. The Court upheld the trial court’s ruling.
David J. Rhein, Orlans Moran, of Waltham, Massachusetts, on the brief for the plaintiff. Jared O’Connor, Gawryl, MacAllister & O’Connor, of Nashua, for the defendant.