Summer 2000

Inside This Issue:

• Massachusetts Accidents: Am I Covered?
• What Is Going On At The Supreme Court?
• Insurance Companies Force Jury Trials
• Long-Term Care Insurance Provides Nursing Home Planning Option
• Why Do I Need A Health Care Power Of Attorney?
• You've Got Mail - (CLASS ACTION)
• Kick-Off To Summer Celebration
• Alimony - Fact or Fiction?
• My Medical Bills Wre Paid By Someone Else - Do I Still Recover Them In My Personal Injury Action?
• Workers' Compensation Payments

Massachusetts Accidents: Am I Covered?
Massachusetts has mandatory no-fault insurance. Every vehicle that is registered in Massachusetts is required to have a minimum of $20,000 in liability coverage and $8,000 in personal injury protection coverage (PIP coverage). New Hampshire does not require insurance coverage at all. However, if a policy is issued to a vehicle registered in New Hampshire, the minimum liability coverage must be $25,000 and the
minimum uninsured motorist coverage likewise must be $25,000.

Massachusetts law limits an injured victim’s ability to bring a lawsuit to recover for the pain and suffering inflicted by the negligent driver. If the injured victim has not incurred more than $2,000 in medical expenses, they cannot bring a lawsuit and would be limited
to the benefits provided by the PIP coverage. In that case, the injured victim could get reimbursement for medical bills under the PIP coverage and also reimbursement for lost wages under the PIP coverage up to the $8,000 limit. However, a New Hampshire driver does not have PIP coverage. Does Massachusetts law prohibit a New Hampshire driver from suing a negligent Massachusetts driver if the medical bills for the injuries did not exceed $2,000? Yes.

However, if the New Hampshire driver has automobile insurance, a claim can be made under the uninsured motorist coverage of the New Hampshire policy. In Green Mountain v. George, 138 N.H. 10 (1993), the New Hampshire Supreme Court indicated that the definition of uninsured motorist includes Massachusetts drivers who have no liability coverage because medical expenses do not exceed $2,000 for the
injury. Accordingly, an injured New Hampshire driver who has incurred less than $2,000 in medical expenses, can process a claim under the uninsured motorist coverage of the New Hampshire automobile policy. If the medical expenses exceed $2,000, a New Hampshire driver would be able to bring a claim against the Massachusetts driver’s automobile policy and would have to file suit in Massachusetts if the claim cannot be resolved with the Massachusetts insurance carrier.

A thorough understanding of insurance coverage law is essential to adequately representing an injured client. We have a number of talented professionals who
understand insurance coverage law including a licensed insurance adjustor and a former Assistant Commissioner of the New Hampshire Insurance Department. Please feel free to contact us should you have any questions regarding insurance coverage issues.

“What Is Going On At The Supreme Court?”
These are historic days for the New Hampshire Supreme Court. After several years of frequently being in the news because of its Claremont School Funding decision, the Supreme Court has now been the subject of even greater scrutiny as a result of ethical lapses by at least one New Hampshire Supreme Court Justice and (at the time of this writing) an ongoing investigation of three other Supreme Court Justices. The New
Hampshire House is investigating whether to initiate impeachment proceedings, and these truly are unprecedented times for the New Hampshire Supreme Court.

In part, the New Hampshire Supreme Court story is the story of one Justice, Justice Stephen Thayer, who, according to the Attorney General, attempted to influence the composition of the panel of Judges who would hear his own divorce case. Apart from legal ethics, most people have a sense Justice Thayer’s activity was simply wrong. Justice Thayer left the Supreme Court abruptly after reaching an agreement with the New Hampshire Attorney General. The Agreement provided that Justice Thayer would step down from the Supreme Court in return for no charges being brought by the Attorney General. However, the more interesting aspect of the Supreme Court story is whether the story begins and ends with Justice Thayer. Three Supreme Court Justices
are being investigated in connection with suggestions by the Attorney General that Court practices relative to recusal (that is, the obligation of Judges not to become involved in cases in which they have a personal interest) have been improper. Other questions have been raised about the Justices’ handling of the Thayer matter and whether wrongdoing, once detected, was properly reported.

The investigation also suggested that judges excused from certain cases nevertheless commented on those cases. This is another area that the legislature is investigating.

We suggest that the clients and friends pay close attention to the newspaper and other accounts of what is going on at the New Hampshire Supreme Court. The drama being played out at the current time is a valuable study of how New Hampshire Government works. Also, years from now, people will look back on this period as one that was extraordinary and unprecedented.

Insurance Companies Force Jury Trials
At the Superior Court House, any day of the week, you are likely to see a civil jury trial in progress where an injured individual is seeking reasonable restitution for her losses. What the jurors in those cases do not know, however, is that an insurance company is paying for the Defense attorney and will have to pay the award. In many instances, it is the insurance company paid attorneys that requests that the case be heard by a twelve (12) person
jury at significant expense to the taxpayers rather than have the case heard by a judge or arbitrator. That is their right.

In small cases, jurors sometimes resent the fact that individuals hurt in car accidents are bringing claims in court for what seem to be small matters. The insurance company
knows that. In my opinion, that is precisely the reason that some insurance companies request jury trials in the first place. The jury may not understand that some insurance companies are willing to spend significant sums of money defending a case in court to, in our opinion, discourage other New Hampshire citizens from bringing just claims associated with small injury cases. By the time a case gets to court, the insurance company may have already denied a reasonable request for settlement by the injured plaintiff and that individual's attorney.

Accordingly, the next time you see a case in progress, try to remember that the trial is probably underway because the insurance company refused an offer to settle the case at an earlier stage. We are in the business of helping families obtain reasonable restitution for losses caused by the negligence of others. If you have been wronged, we encourage you to stand up to the insurance company even if they force you to go through a jury trial. Your fellow residents sitting on the jury usually see through this tactic and award fair restitution for your losses.

Long-Term Care Insurance Provides Nursing Home Planning Option
Many individuals are looking forward to their golden years with their once modestly priced home soaring in value and their once-modest IRA, 401(k) and stock investment accounts also reaching levels they never imagined. As a result, clients frequently inquire of various
planning options to leave their children maximum assets, even if they have to go into a nursing home.

Federal and state governments have strict rules regarding nursing home planning. One of the best options available is through long term care insurance.While long-term care insurance is costly, if sufficient assets are outstanding, it could be a worthwhile investment. Speak with a financial counselor and/or your attorney.

Why Do I Need A Health Care Power Of Attorney?
Anyone who has been to a health care facility recently, for even routine procedures, has probably been asked, “Do you have a health care power of attorney?” Most people do not and may be handed a basic form for completion prior to the procedure without having had the opportunity to consult with their lawyer or a close and trusted family member.

A health care power of attorney is a very powerful and important document for everyone regardless of age. Having a health care power of attorney can avoid the often
expensive and time consuming process of appointing a guardian. With a health care power of attorney, an individual appoints an agent to act on their behalf to make health care decisions, but only when the individual has been medically certified to be unable to
make their own decisions.

Often, individuals will have a health care power of attorney and a living will. We recommend both. A living will is a direct instruction to the individual’s doctor that life sustaining procedures not be started or maintained. The living will generally acts as a back up to or in conjunction with the health care power of attorney in the event the
chosen agent and alternate are unable or unavailable to serve. An individual is entitled to request that his or her doctor make the living will a permanent part of the individual’s medical file.

An individual can appoint almost anyone to act as his or her agent with few exceptions.However, great care and consideration should be taken when appointing an agent.

If you do not have a health care power of attorney and/or living will, or if the ones you have are more than seven years old, contact us to schedule an appointment to review your health care directive needs. Failure to have a valid and updated health care power of attorney and living will can cause tremendous financial and emotional hardship to your family at a very difficult time.

You’ve Got Mail – (CLASS ACTION)
An increasing number of our clients call with questions regarding Class Action mailings they have received. These notices typically inform the addressee that they are potential members of a Class Action, and provide a return form by which the addressee can select
certain options open to members of the Class.

What are these mail solicitations about? Well, these mailings are a part of how massive Class Actions really work. Somewhere in the country there is a big lawsuit going on (typically arising out of a bad product or a bad business practice). At some point in the lawsuit, the Plaintiff requested that the lawsuit be expanded to include all persons
who may be potentially affected by the same problem. Because you are identified as a recipient of the bad product or a victim of the bad business practice, you were sent a
notice as one of these potentially injured parties.

When you become a member of a Class Action, you generally lose your rights to bring any type of independent lawsuit. Thus, these mailings typically ask whether you wish to join the Class or preserve your rights to bring an independent action. Depending upon the complexity of the Class Action, you may also receive at that time, or a later time, a benefits form, where you select from a range of benefits open to Class members.

You should keep in mind that in most cases the relief that goes to individual members of a massive Class Action is relatively small. However, you do not have the expense or risk of bringing an action on your own behalf, and if you never intended to pursue any
type of legal remedy anyway, it is certainly true that something is better than nothing. Although the materials you receive are supposedly designed to be understandable by
a layperson, we have found that these mailings and brochures can be quite complex, even to someone with legal training. If you receive a Class Action mailing, and have any questions about it, please do not hesitate to give us a call. We may have already dealt with a similar mailing with another client, and may be able to provide an easy answer to your questions.

KICK-OFF TO SUMMER CELEBRATION
On May 24th, we hosted a pre-summer party for the legal community under a large tent in their parking lot.

With live music, hors d’oeuvres and great conversation, summer was officially inaugurated.

Our guests mingled with our special friend, former New England Patriot football great,
John Hannah.

Manchester Mayor Bob Baines and WMUR-TV Sports Anchor Charlie Sherman also stopped by to say hello.

Alimony - Fact or Fiction?
Of all the frequent misconceptions I hear from people regarding divorce, alimony has to be one of the most misunderstood areas of domestic law. At one end of the spectrum there is the myth that there is no alimony under New Hampshire law. The opposite perception comes from the person who has only been married for a few years and thinks that they will
be able to take their soon-to-be ex-spouse “to the cleaners” and make them pay alimony. Reality falls somewhere in between – alimony is alive and well in New Hampshire, but not every case.

This confusion stems from the fact that alimony law is far from being cut and dry. There is no simple mathematical formula to awarding alimony. The court considers the reasonable needs of the parties, the life style they have become accustomed to during the marriage, and their ability to support themselves in that manner. The statute then
provides a list of 13 factors for the court to consider in determining how much to award. In addition, the judge has broad discretion when applying these factors and may also consider any other factors deemed to be relevant.

Alimony can be awarded on a temporary or on a permanent basis. Unless the court specifically provides, there is no point in time when alimony automatically ceases such as remarriage or cohabitation. Alimony can always be reviewed by the court at the request of either party, but there generally needs to be a sufficient change in the circumstances of either party to warrant a change in an alimony award. 

My Medical Bills Were Paid By Someone Else — Do I Still Recover Them In My Personal Injury Action?
In the year 2000, more often than not, medical bills from personal injuries are covered by health insurance or some other entity such as an employer.

It is not unusual in a personal injury case to incur treatment costs in the thousands
of dollars for your accident-related injuries. Even though these bills have been paid directly by someone other than yourself, you are still entitled to seek recovery of these bills in your personal injury claim.

In most states, including New Hampshire, it has long been the law that there is nothing unfair about allowing a person to recover medical bills even though they have been paid by some type of insurance entity. The rationale is that the injured party has paid for insurance coverage, and having paid for such insurance coverage, is entitled to all the benefits of that coverage.

In any event, concerns about fairness have largely faded due to the realities of modern day insurance contracts. Almost all health insurance contracts now provide that the health insurer has a contractual right to seek recovery from you in the event you recover medical bills from the person responsible for your injuries. There are other medical expense payors - such as the Government through Medicare and Medicaid and employers – who have an even stronger right of recovery than a contractual right. These entities are protected by law and have an actual statutory lien (a reimbursement claim against you derived from actual law enacted by a legislature) against your personal injury recovery.

Thus, the possibility of a double recovery has now largely disappeared. You will be able to claim your medical bills in your personal injury case, but in all probability you will have to take part of your personal injury recovery and reimburse the health insurance carrier or other entities that originally paid those bills.

Workers’ Compensation Payments
An injured New Hampshire worker only receives sixty percent (60%) of his/her average weekly wage under New Hampshire’s workers’ compensation law. The average weekly wage is usually calculated by taking the average of the workers’ last twentysix (26) weeks of earnings. However, New Hampshire law provides other methods to calculate the worker’s average weekly wage which may be more advantageous to the injured worker.

For example, the average weekly wage can be based on anywhere between twenty-six (26) and fifty-two (52) weeks of earnings. By using a higher number of weeks, a period of high overtime hours can be captured in the calculation. If the worker has not been employed for twenty-six weeks with the same employer, you can look to the hourly rate of pay and the number of hours usually worked per week or otherwise look to similarly situated workers who work for the same employer. If the worker is earning a low hourly wage, you can take advantage of the minimum payment as opposed to the sixty percent of the average weekly wage calculation. In addition, if the worker has a part-time job in addition to the job where the injury occurred, the part-time wages can be used in calculating the average weekly wage.

We always investigate whether the average weekly wage has been calculated in a manner most advantageous to our client. Because the insurance carrier does not generally offer this information to you, it is always wise to consult with an attorney when
injured on the job.