2012 New Hampshire Statutory Changes
For Questions Contact
Attorney Michael Wallenius
Landowner Immunity for Recreational Use Expanded
Session 2012, Chapter 214
Approved: June 13, 2012
Effective: June 13, 2012
New Hampshire has two recreational use statutes that provide immunity for landowners who permit others to participate in recreational activities on their property for free.
The first, RSA 508:14, is under the chapter of the N.H. Revised Statutes that govern limitations of legal actions. It grants immunity to an owner, occupant, or lessee of land who without charge permits any person to use land for recreational purposes.
The second, RSA 212:34, comes under the chapter relating to fish and game laws. It provides immunity to an owner, lessee or occupant of premises who gives permission to another to use the land for a number of enumerated activities, including hunting, fishing camping and the use Off Highway Recreational Vehicles (OHRVs)
Prior to January 2006, New Hampshire had a third statute, RSA 215:34, II providing that OHRV operators may not maintain an action against “an owner, occupant, or lessee of land” for injuries resulting from risks inherent to the use of OHRVs. This statute was repealed when OHRV use was added to the list of activities covered by the immunity provision in RSA 212:34.
In 2005, before the repeal of RSA 215:34, II, the N.H. Supreme Court issued an opinion in which all three statutes were held not to apply to a case in which a snowmobiler was killed when he collided with a snow-trail grooming machine while using a recreational trail for free. Estate of Kenison v. Dubois, 152 N.H. 448.
The trail was on land owned by Portland Pipeline. The grooming machine was operated by defendant Dubois and owned by the defendant Waumbek Methna Snowmobile Club. Waumbek voluntarily maintained the section of the trail where the collision occurred.
In that case the court held that the defendants did not meet the definition of an “occupant” under any of the three recreation use statutes, because the defendants, as volunteer maintainers of the property did not have the ability or authority to permit persons to use or enter the land.
In response, the legislature amended RSA 508:14 in 2006, to extend the immunity to any person or entity that provides services such as maintenance, construction or improvements on the land.
This new statute apparently is intended to make similar changes to RSA 212:34, which has been repealed and reenacted to clarify certain details.
The statute now defines a “landowner” as the “owner, lessee, holder of an easement, occupant of the premises, or person managing controlling or overseeing the premises on behalf of the owner, lessee, holder of an easement or occupant of the premises.”
Exceptions to Landowner immunity include:
- Willful and malicious failure to guard or warn against the dangerous condition, use, structure or activity;
- Injuries suffered in a case where permission to enter or use the premises for outdoor recreational activity was granted for a charge other than for the consideration paid to the landowner by the state; or
- When injury was caused by the acts of persons to whom permission to enter the land for outdoor recreational activity was granted and that injury was caused to third persons to whom the landowner owed a duty to keep the premises safe or to warn of danger or when the injury suffered was caused by the intentional acts of the landowner.
Another significant change to the statute will require a plaintiff to pay the defendant’s attorney’s fees and costs if the court finds that the defendant is immune from a suit and that the plaintiff had no reasonable basis for bringing the suit against the defendant.
Motorists Required to Give a Wide Berth to Highway Workers
and Vehicles Displaying Amber Warning Lights
Session 2012, Chapter 135
Approved: June 5, 2012
Effective: June 5, 2012
This new statute amends RSA 265:6-a II to provide that when a motorist approaches highway workers displaying amber warning lights they are required to give wide berth to the highway workers and their vehicles, whether moving or stationary, without endangering oncoming traffic.
This rule applies regardless of whether the vehicles are owned or contracted by the state or local highway maintenance department.
The significance of this statute is that it may provide a basis for negligence per se where an accident occurs between a moving vehicle and highway workers as it provides a statutory duty of care.
New Statute Establishes an Early Offer
Alternative Procedure for Medical Malpractice Claims
Session 2012, Chapter 288
Governor’s Veto Overwritten: June 27, 2012
Effective: January 1, 2013
Prior to the adoption of this statute, medical malpractice claims were subject to a screening panel established under RSA Chapter 519-b. The purpose of the screening panel statute was to identify claims of professional negligence which merit compensation and to encourage the early resolution of those claims prior to the commencement of a lawsuit. Another purpose was to encourage early withdrawal or dismissal of non-meritorious claims.
After a hearing, the screening panel makes findings regarding negligence to causation and comparative fault. Those findings are issued in writing to the parties and are confidential. They are also not admissible in Court unless they are unanimously in favor of one party.
The new early offer statute is optional whereas the medical injury screening panel is not.
Under this new statute an early offer is an offer to pay an injured person’s economic loss related to a medical injury, as well as reasonable attorney’s fees and costs incurred in representing the injured person, but do not include any other claims of damages.
Economic losses are defined as monetary expenses incurred by the claimant reasonably related to a medical injury and its consequences including actual out-of-pocket medical bills, replacement services, and lost wages.
Excluded from economic loss are damages for pain and suffering, punitive damages, enhanced compensatory damages, hedonic damages, physical impairment and mental anguish, emotional pain and suffering, loss of earning capacity, and loss of consortium among others.
The procedure established by the early offer statute requires that the claimant serve notice of the injury to the responsible medical care provider along with a waiver of rights.
Upon receipt of the notice and waiver of rights, the medical provider can either extend an early offer of settlement or decline to make an early offer.
In addition to economic losses, the early offer must included an “additional payment,” based on the type and severity of the claimants injury, pursuant to the schedule of payments established under RSA 519-C:7, as follows:
(a) For a temporary injury involving only emotional harm, without physical injury: $6,600.
(b) For a temporary injury involving insignificant harm: $2,100.
(c) For a temporary injury involving minor harm: $7,800.
(d) For a temporary injury involving major harm: $31,500.
(e) For a permanent injury involving minor harm: $35,500.
(f) For a permanent injury involving significant harm: $81,500.
(g) For a permanent injury involving major harm: $127,500.
(h) For a permanent injury involving grave harm, or an injury resulting in death: $140,000.
Classification of injuries is to be determined using the National Practitioner Data Bank severity scale.
The failure by either the claimant to make a notice of injury or the provider to extend an early offer are not subject to review by any Court.
Upon receipt of notice the medical care provider has 90 days to set forth the details of its early offer or indicating that it decided not to extend an offer. However, the medical care provider may request an IME. If the parties cannot agree an IME doctor, they may request that a hearings officer choose one.
After the medical care provider extends an early offer the claimant has 60 days to accept or reject it. However, the claimant can request a hearing to resolve any dispute with respect to the content of an early offer.
If the claimant accepts an early offer, he is barred from pursuing any claim for malpractice against the medical care provider.
If the claimant rejects the early offer, he may pursue a medical malpractice claim under the terms of the screening panel.
If a claimant rejects an early offer and does not prevail in the malpractice action by being awarded at least 125% of the early offer amount, he/she is then responsible for paying medical care providers attorney’s fees and costs incurred in the proceeding under the early offer statute.
The statute also provides that the claimant certifies to the Court that a bond or other security for payment of the medical care provides that attorney’s fees and costs have been posted before the Court can consider the malpractice case.
When a claimant is unrepresented, the medical care provider is required to provide a neutral advisor who is a member of the New Hampshire Bar or a retired judge at the medical care provider’s expense to offer assistance to the claimant and the medical care provider under this new statute.
The neutral advisor is to encourage the claimant to consider retaining an attorney and is supposed to ensure that the claimant is aware of the differences between the proceeding and the early offer statute and the other statutes governing medical malpractice claims.
The claimant has five business days after meeting with the neutral advisor to withdraw his/her early offer claim.
When an early offer is accepted, the medical provider has 15 days to pay the economic losses previously incurred by the claimant. The medical provider is also required to pay future economic losses incurred related to the medical injury as they accrue and if a dispute concerning request for payment is denied, the medical provider has to provide written notice to the claimant detailing the basis for the denial and notifying the claimant of their right to request a hearing on that dispute.
With respect to ongoing lost wages, payments must be made on a weekly basis and such payments shall be adjusted annually for inflation based on the local percentage change in the consumer price index.
The medical care provider and its insurance company have a right to dispute whether a later medical expense is related to medical injury and to submit that issue for independent medical evaluation.
Future payments may be made in the form of a lump sum payment if agreed upon by the parties.
Where malpractice has resulted in the death of the claimant, the early offer has to include any economic loss incurred by the decedent prior to death, the value at the time of death of what would have been the net earnings of the deceased, less living expenses, during the period of his life expectancy, the value of replacement services during the period of the decedent’s life expectancy and an additional payment determined pursuant to RSA 519-C:7, as well as reasonable attorney’s fees.
Where multiple providers are thought to have contributed to the injury, early offers must include all economic loss plus reasonable attorney’s fees and cannot be reduced or apportioned based on comparative fault of multiple providers.
Any medical care provider or combination of providers may extend an early offer, and acceptance of the offer brought by the plaintiff will bar any further lawsuit or other claims for compensation against the other medical providers that contributed to cause the same injury.
However, a medical provider that extends an early offer that is accepted may seek contribution in a separate action against the other responsible parties.
The statute of limitations under this new statute is the same as for medical malpractice claims except for cases involving death, which are governed by the limitations period established in the wrongful death statute.
Any insurer or third party that has paid or reimbursed economic losses for the benefit of the claimant has a right of subrogation against the medical provider entering into an early offer of settlement.
The actual language of this new statute may be viewed by following this link:
http://www.gencourt.state.nh.us/legislation/2012/SB0406.html
New Modifications to Property Casualty Insurance Statutes Governing:
1. The Rules for Cancellation of Coverage for Non-Payment.
2. The Rules Concerning the Cancellation of or Refusal to Renew Commercial Insurance.
3. The Rules Concerning Certificates of Insurance.
Session 2012, Chapter 100
Approved: May 29, 2012
Effective: July 28, 2012
This new statute amends the statutes governing property casualty insurance in three ways.
1. Cancellation of Coverage:
The first has to do with cancellation of insurance policies for non-payment.
Under the original language of the statute, an insurance carrier could not cancel a policy for non-payment if
- the payment of the premium was actually received by the carrier; and
- the payment was either:
- sent by certified mail before the cancellation date on the notice of cancellation; or
- was received by the insurance company’s agent before that date.
The new version of the statute clarifies that cancellation of the policy is not permitted:
- if the payment has actually been received by the insurance company or its agent by certified mail before the cancellation date; or
- the payment was sent to the carrier or its agent by certified mail before the cancellation date.
2. Cancellation and Renewal of Commercial Insurance
The statute also amends RSA 417-C:1,I(a) governing the cancellation of or refusal to renew commercial insurance.
In addition to being permitted to cancel a commercial policy for non-payment of premium, a carrier may now also cancel or refuse to renew a policy for non-payment of any additional premiums due from an audit conducted in accordance with the law for the prior policy term.
3. Certificates of Insurance
The statute that regulates the contents of certificates of insurance was also amended.
RSA 412:6-b establishes mandatory warning language for the certificate of insurance and also prohibits the issuance of certificates of insurance with false or misleading information. Subsection (4) specifically prohibits issuance of certificates of insurance that purport to affirmatively or negatively alter, amend, or extend coverage provided by any policy of insurance referenced in the certificate.
The new statute adds a clause to subsection (4) that says that with regard to umbrella/excess liability coverage limits, the certificate may show limits that are less than the actual policy limits if the certificate is issued with respect to a particular contract and such lower limits meet the requirements of that contract.
Under RSA 4126-b II(e), an insurance producer may charge a reasonable fee for providing a certificate of insurance. This new statute specifies that reasonable fee must accurately reflect the actual effort and cost to the producer required to prepare and issue the certificate.
The Number of Employees Necessary to Trigger Workers’ Compensation Safety Program Requirements Increased
Session 2012, Chapter 144
Approved: June 7, 2012
Effective: January 1, 2013
This new statute increases the number of employees required for an employer to be subject to the worker’s compensation safety program from ten to fifteen.
It also repeals the workers’ compensation safety inspection fund and deposits penalties for such programs in the general fund.
Safety Commissioner Authorized to Waive Financial Responsibility Requirements for Certain Habitual Offenders
Session 2012, Chapter 60,
Approved: May 14, 2012
Effective: May 14, 2012
Under RSA 259:39a person is a habitual offender if they committed a certain number of motor vehicle offences listed in the statute.
The Director of the Division of Motor Vehicles is authorized by RSA 262:19 to conduct hearings to determine if an individual meets that definition and, if they do, suspend their driving privileges in New Hampshire for a period of four years.
The Financial Responsibility Statute also permits the Director to suspend driving privileges of an uninsured individual convicted of certain motor vehicle violations until such time as they provide proof of financial responsibility. RSA 264:2.
Under RSA 262:22 a habitual offender could not get his license renewed until his revocation period had been served, and he provided proof of financial responsibility, and his license had been restored in writing by an order of the Director of Motor Vehicles or a Court.
This new statute permits the Commissioner of Safety to waive the financial responsibility requirement, for good cause shown, but only for habitual offenders that (1) have not driven a motor vehicle in violation of the order; and (2) have not held a license for five years or more.
The reason for this change is unclear, but the effect will be to allow habitual offenders to return to driving in the ways of the state without automobile liability insurance. Since the statute requires that good cause be shown for the waiver, it appears that the statute was enacted to provide the Commission with greater flexibility with regard to the re-licensing habitual offenders.
New Statute Authorizes:
1. Suspension of Driver’s Licenses for Serious Boating Offenses, and
2. Loss of Motor Boat Privileges for Aggravated DWI.
Session 2012, Chapter 43
Approved: May 2, 2012
Effective: January 1, 2013
Before the enactment of this new statute, RSA 263:56 authorized the Department of Safety to revoke driving privileges of an individual convicted of reckless or unlawful operation of a motor vehicle that caused an accident resulting in the death or injury to another person or serious property damage.
This new statute also includes the suspension of a driver’s license where the operator of a boat has caused such an accident.
Additionally, it amends RSA 265-A:20, which previously provided that when a person was convicted of driving under the influence of drugs or liquor they would also lose their motor boat privileges for a period of one year from the date of conviction. The statute as amended now provides that conviction for aggravated driving while intoxicated under RSA 265-A:3 will result in the loss of motor boat operating privileges in the State of New Hampshire for the same period of time as the loss of driving privileges.
Prescription Drugs added to List of Prohibited Items
Relative to Driving Under the Influence
Session 2012, Chapter 267
Approved: June 18, 2012
Effective: January 1, 2013
This bill changes the prohibition on driving under the influence of a controlled drug, by adding to that list prescription drugs, over-the-counter drugs, or any other chemical substance which impairs a person’s ability to drive.