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In this declaratory judgment proceeding, petitioner Exeter Hospital, Inc. (Exeter) appealed a superior court order denying its motion for partial summary judgment as to the amount at which coverage was triggered under an umbrella policy (the policy) issued to Exeter by respondent Steadfast Insurance Company (Steadfast). In the spring of 2012, an outbreak of Hepatitis C infections among patients serviced by Exeter’s cardiac catheterization lab led investigators to discover that a technician had spread the virus to patients “through a clandestine drug diversion scheme.” The technician allegedly injected certain drugs into his body by way of intravenous needles, then reused the needles on patients, thereby infecting them with the virus. Numerous lawsuits were lodged against Exeter by affected patients. Exeter was primarily insured through a Self-Insurance Trust Agreement (SIT), which provided professional liability coverage in the amount of $1 million per medical incident, with a $4 million annual aggregate cap. Exeter also maintained the policy with Steadfast, which provided excess health care professional liability coverage. Steadfast maintained that it would pay damages only in excess of the $100,000 retained limit for each medical incident. Exeter filed this proceeding, seeking a declaration that it was not required to pay $100,000 retained limit per claim. The trial court interpreted the term “applicable underlying limit” as being a variable amount “dependent on the actual coverage remaining under [the] other [limits of] insurance,” here, the limits of the SIT. Because Exeter had paid out the limits of the SIT, the court found that the “applicable underlying limit” was zero, thereby rendering the $100,000 retained limit greater than the “applicable underlying limit.” Thus, the court determined that, pursuant to “Coverage A,” Steadfast was required “to pay damages in excess of $100,000 for each medical incident.” Exeter sought reconsideration of the court’s order, which the court denied. Although the New Hampshire Supreme Court did not agree with every underlying argument pressed by Exeter, it concluded that its overall argument regarding the interpretation of Coverage A was reasonable, and the trial court therefore erred in granting partial summary judgment as to the terms of Coverage A. View "Exeter Hospital, Inc. v. Steadfast Insurance Company" on Justia Law

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Defendant, David J. Widi, Jr. appealed a superior court order denying his petition for a writ of coram nobis. In February 2004, the defendant filed a notice of intent to plead guilty to a charge of misdemeanor reckless conduct in exchange for a negotiated sentence. Almost four years later, defendant was charged with the federal offense of being a felon in possession of a firearm, with his felony reckless conduct conviction serving as the predicate felony. In 2010, the defendant filed in the trial court a “Motion to Correct the Record.” In that motion, the defendant asserted that it “ha[d] recently come to [his] attention that the [m]ittimus” for his conviction reflected that he was convicted of felony reckless conduct. He further asserted that a felony indictment for reckless conduct — instead of a misdemeanor information for reckless conduct - “was erroneously submitted at sentencing . . . causing the misclassification of [his] conviction in the [m]ittimus.” Consequently, he requested that the mittimus for his reckless conduct conviction be “correct[ed]” to reflect that he had pleaded guilty to misdemeanor reckless conduct, not felony reckless conduct. The trial court denied the defendant’s motion. In 2014, defendant filed this petition for a writ of coram nobis. He argued that the trial court erred by denying his petition without holding an evidentiary hearing. The New Hampshire Supreme Court held that the common law writ of coram nobis existed in New Hampshire. This case presented the distinct issue of whether a trial court may deny a defendant’s petition for a writ of coram nobis without holding an evidentiary hearing. The Court held that a trial court may deny a petition for a writ of coram nobis without holding an evidentiary hearing if the record clearly demonstrates that the defendant is not entitled to coram nobis relief. Here, because the record clearly demonstrates that no sound reason exists for the defendant’s failure to seek earlier relief, the trial court did not err when it denied the defendant’s petition without a hearing. View "New Hampshire v. Widi" on Justia Law

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Defendant Abraham DePaula appealed after he was convicted by jury on one count of burglary, five counts of theft by unauthorized taking, and two counts of conspiracy to commit theft by unauthorized taking. He argued the trial court erred when it: (1) ruled that his testimony opened the door to evidence of his alleged involvement in an unrelated homicide; (2) denied his motion in limine to preclude the State from introducing testimony regarding physical and sexual assaults that occurred during the burglary; (3) allowed the State to introduce lay testimony from custodians of cellular telephone records regarding the range of cell towers; and (4) sentenced the defendant on both conspiracy to commit theft convictions. The State conceded that, under the facts and circumstances of this case, it was plain error for the trial court to sentence the defendant on both conspiracy convictions. Accordingly, the New Hampshire Supreme Court vacated defendant’s conviction on one of the conspiracy indictments, but affirmed in all other respects. View "New Hampshire v. DePaula" on Justia Law

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Petitioner Beverly Desmarais appealed the decision of the New Hampshire Compensation Appeals Board (CAB) denying her request for attorney’s fees and costs that she incurred in litigating a fee dispute with the respondents, Utica National Insurance Group (Utica) and AMI Graphics. The CAB determined that, although the Workers’ Compensation Law entitled the petitioner to attorney’s fees and costs associated with litigating the merits of her workers’ compensation claim, it did not further entitle her to fees and costs incurred in successfully litigating the fee dispute. The New Hampshire Supreme Court reversed and remanded, finding that the evident purpose of paragraph VI of RSA 281-A:44 was to encourage claimants to obtain, and attorneys to provide, representation in a certain class of disputes regarding workers’ compensation benefits. The Court remanded to the CAB for a determination as to the reasonableness of the additional fees and costs that the petitioner incurred in litigating the fees and costs issue at the administrative level. Any party aggrieved by the CAB’s order on fees and costs may appeal to the Supreme Court pursuant to RSA chapter 541. View "Appeal of Beverly Desmarais" on Justia Law

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Plaintiff segTEL, Inc. was a telecommunications company that owned and/or operated a fiber optic cable network throughout New Hampshire, including within the City of Nashua. It did not own any poles or conduits within the City, and did not have its own license from the City authorizing its occupation of the City’s rights of way. Instead, pursuant to pole attachment agreements with the utility providers, the plaintiff remitted a fee to the utility providers in exchange for the right to place its fiber optic cables on their poles and conduits. These pole attachment agreements did not require the plaintiff to pay property taxes assessed by the City. Having become aware of plaintiff’s use of the utility providers’ poles and conduits, the City in 2014 assessed plaintiff property taxes of $1,507.94 for its use of the City’s rights of way. Plaintiff applied for an abatement, which the City denied. Thereafter, plaintiff brought this action in superior court, seeking: (1) a declaratory judgment that the City was not entitled to impose the tax; and (2) to strike the City’s 2014 tax assessment. The trial court granted summary judgment to plaintiff, ruling that “[b]ecause [the plaintiff] has not entered into an agreement in which it consented to be taxed,” the City could not lawfully tax the plaintiff for its use and occupation of the City’s rights of way. The City appealed, and finding no reversible error in the trial court’s judgment, the New Hampshire Supreme Court affirmed. View "Segtel, Inc. v. City of Nashua" on Justia Law

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Plaintiff Condominiums at Lilac Lane Unit Owners’ Association (Lilac) appealed a superior court order granting summary judgment to defendants Monument Garden, LLC (Monument Garden) and Eastern Bank. The trial court determined that a residential development in Dover known as the Condominiums at Lilac Lane was not subject to the provisions of the Condominium Act RSA chapter 356-B (2009 & Supp. 2016), regulating “convertible land.” The New Hampshire Supreme Court agreed with defendants that the plain language of the Act contravenes Lilac’s assertion that “convertible land” and “expandable condominium” were the only means by which units may be built in the future after the condominium was created. As such, the Court affirmed the superior court’s order. View "Condominiums at Lilac Lane Unit Owners Assn. v. Monument Garden, LLC" on Justia Law

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Defendant Peggy Starr appealed her conviction on one count of second degree assault, as a lesser included offense of first degree assault. In 2010, at six and one-half years of age, D.A. was hospitalized at a weight of just 23.4 pounds. At the time of his hospitalization, he suffered developmental delays, was failing to gain weight, and was short for his age. Ultimately, D.A. was diagnosed with failure to thrive due to malnutrition and psychosocial dwarfism. D.A. had been in the care of the defendant and her daughter, Christina Thomas. In addition to administering physical discipline, she would control his eating to modify his behavior. She took food away from him to punish him even after one of his treatment providers instructed that she not do so. Although defendant knew that D.A. was not growing taller, was not gaining weight, and was developmentally delayed, she told authorities at D.A.’s school that he was not to be given an extra lunch if he ate his packed lunch on the way to school, and she continued to withhold food from him as punishment. Within ten months of D.A.’s removal from the care of defendant and Thomas, his weight nearly doubled. Defendant was charged with first degree assault for knowingly causing serious bodily injury to D.A. by causing his “failure to thrive” condition by failing to provide him with proper nutrition. She moved to dismiss the indictment, arguing that the first degree assault statute did not impose criminal liability upon defendants for omissions. The trial court denied the motion, ruling that “first degree assault as charged in this case may be established by conduct constituting a voluntary act or a voluntary omission.” The New Hampshire Supreme Court affirmed the trial court’s decision. View "New Hampshire v. Starr" on Justia Law

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Because the issuance of extraterritorial search warrants is not expressly prohibited by the legislature, and because the amicus did not identify any constitutional limitations applicable to these facts, the Court held that the circuit court would not have exceeded its territorial jurisdiction by issuing the search warrant at issue here. In February 2016, an Ashland police officer applied for a search warrant for certain cellular telephone records at an AT&T facility in Florida. New Hampshire sought these records in connection with a criminal investigation being conducted by the Ashland Police Department. Citing the New Hampshire Supreme Court’s decision in New Hampshire v. Mello, 162 N.H. 115 (2011), the circuit court denied the State’s application, reasoning that it “ha[d] no authority to issue a warrant against a foreign corporation.” Seeking reconsideration, the State argued that “[u]nder Florida law, [AT&T] is required to treat an out-of-state subpoena or warrant as if it were issued by a Florida Court.” It also argued, among other things, that our decision in Mello “d[id] not preclude the issuance of the warrant.” The circuit court denied the State’s renewed application, again relying upon “Mello.” The Supreme Court determined that “Mello” was not controlling here. Now, as a matter of first impression, the Court considered the issue of whether the circuit court would have exceeded the scope of its territorial jurisdiction by issuing an extraterritorial search warrant, specifically, a warrant authorizing the search and seizure of an electronic communication service provider’s records in Florida. The Court reversed. View "In re Search Warrant for Records From AT&T" on Justia Law

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The New Hampshire Supreme Court affirmed an order of the New Hampshire Board of Tax and Land Appeals (BTLA) denying 77 of Public Service Company of New Hampshire's (d/b/a Eversource Energy (PSNH) 86 individual tax abatement appeals on property located in 31 municipalities for tax year 2011, and 55 abatement appeals for tax year 2012. The New Hampshire Public Utilities Commission (PUC) granted PSNH exclusive franchises to provide certain electricity services within its territory. A municipality’s selectmen appraise the value of the property located within the municipality, including utility property. For the appeals that it granted, the BTLA found that the municipal assessors acknowledged a material degree of overassessment of the property at issue. The BTLA noted that PSNH’s burden in a tax abatement appeal was to demonstrate that the municipal assessments were disproportionate.The BTLA found that PSNH had made only “very general assertions regarding regulation and its alleged impact on the market value of [PSNH’s] property.” It therefore concluded that PSNH had failed to provide sufficient probative evidence that the utility regulatory environment in which PSNH operated, considering both the benefits and burdens of such regulation, was so restrictive that any prospective purchaser would be limited to a return based upon net book value. Thus, merely identifying the presence of regulation that may impact the market value of property was insufficient. Based upon its review of the record, the Supreme Court agreed with the BTLA, and found that the BTLA's findings were supported by the record with respect to PSNH's remaining claims. View "Appeal of Public Service Company of New Hampshire d/b/a Eversource Energy" on Justia Law

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New Hampshire Electric Cooperative, Inc. (NHEC) filed tax abatement appeals to the Board of Tax and Land Appeals (BTLA) for 23 municipal assessments of its property that occurred in 2011 and 2012. The BTLA held a consolidated hearing over nine days between January and February 2015 regarding NHEC’s tax abatement appeals. During the hearing, NHEC presented expert witness testimony and an appraisal of NHEC’s property from George Lagassa, a certified general real estate appraiser and the owner of Mainstream Appraisal Associates, LLC. In his appraisals, Lagassa estimated the market value of NHEC’s property by reconciling the results of four valuation approaches: a sales comparison approach; an income approach, which estimated the value of NHEC’s property by capitalizing the company’s net operating income; a cost approach, which estimated the net book value (NBV) of NHEC’s property by calculating the original cost less book depreciation (OCLBD) of NHEC’s property; and a second cost approach, which estimated the value of NHEC’s property by calculating the reproduction cost new less depreciation (RCNLD) of NHEC’s property. NHEC appeals the BTLA order denying 16 of NHEC’s 23 individual tax abatement appeals regarding its property. The New Hampshire Supreme Court found no reversible error in the BTLA’s order and affirmed it. View "Appeal of New Hampshire Electric Cooperative, Inc." on Justia Law