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A group of New Hampshire legislators recently stepped forward in response to the persistent opposition of the plaintiffs' personal injury bar to the case of DeBenedetto v. CLD Consulting Engineers, Inc., 153 N.H. 783 (2006), and proposed new legislation that is calculated to undermine the New Hampshire Supreme Court's prior decisions relating to the apportionment of fault among responsible parties. On December 11, 2013, Senate Bill 297 (SB 297) was submitted for introduction to the Senate Judiciary Committee. As presently drafted, SB 297 would amend RSA 507:7-e, I (a) by adding language that would limit the apportionment of damages to parties who are not immune from liability.
The practical effect of the proposed legislation is that, contrary to the existing DeBenedetto line of cases, fault could not be apportioned at trial against any third party who is immune from liability, even though that third party may have contributed substantially to the cause of the plaintiff's injury. Such third parties would include employers, governmental units, recreational use landowners, ski area operators, and all other entities that enjoy statutory immunity.
Although fault could still be apportioned to non-immune parties who had had never been sued by a plaintiff, and to parties who had settled with a plaintiff prior to trial, SB 297 would nevertheless create an insurmountable obstacle to the fair apportionment of fault to all those responsible for a plaintiff's injury. The amendment proposed by SB 297 would create a situation in which a defendant who had a low degree of fault for an injury could be forced to pay a disproportionately large percentage of a plaintiff's damages because of the inability to apportion fault to a more responsible, but immune, third party.
SB 297 represents a slightly diluted version of another bill, House Bill 143, which former Governor Lynch vetoed in 2007. If not vetoed, that bill would have permitted the allocation of fault only among those defendants that remained actual parties to a lawsuit at the conclusion of the trial. In vetoing HB 143, Governor Lynch stated, "I cannot support this change in the law because it is unfair for a defendant with a low degree of fault to have to pay a disproportionately large share of the damages." SB 297 raises the same concerns of fundamental fairness as those expressed by Governor Lynch in his 2007 veto.
We suggest that you make your in-house counsel and industry representatives aware of SB 297 so that they may respond appropriately to this renewed effort to undermine the DeBenedetto line of cases. If you have questions regarding the potential impact of the bill, then please do not hesitate to contact any of the members of Devine, Millimet's Insurance Defense or Legislative and Governmental Affairs practice groups.
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