Summary of 2012 Legislative Session
In January, NHAJ identified more than 100 bills of potential concern to members including 25 that were deemed top priority. Priority bills of concern included offers of judgment, periodic payments of judgments, awards of non-economic damages, loser pays, assessment of damages in tort actions by joint and several liability, several bills
with immunity provisions (including antifreeze immunity, sports official immunity, school personnel immunity, and
snow plow/salt applicator immunity), evidence of admissions in medical injury actions and an early offer bill. Of
those 25 bills, 22 were either killed or rendered innocuous (through placement in interim study). Three bills of
concern were passed by both houses and now go in front of the Governor, the most troubling of which is the early
offer bill (more below).
Throughout the session NHAJ mobilized members to participate in hearings, work sessions and executive sessions.
On the most contentious and controversial bill of the session, SB 406, the so-called Early Offer bill, NHAJ led the
opposition. Members packed hearings, contacted legislators, made sure newspaper reporters had the facts, wrote
letters to the editor and op-eds. In addition, NHAJ created a website on the bill, www.nhearlyofferexposed.org to
serve as a resource for NHAJ members, interested citizens, legislators and the media.
SB 406: The Early Offer Bill
SB 406 – In the bill as introduced, an insurance company could make a low ball early offer and if the injured party
rejected the low ball offer it would trigger a provision in which the injured party would be forced to prove by ‘clear
and convincing evidence’ that the provider acted with ‘gross negligence’. The injured person could request a
hearing with the hearing officer paid for by the medical provider and the hearing decision not appealable. The bill
put no value on economic losses of stay-at-home parents, students or the elderly. As the bill made its way through
the Senate, the House and a conference committee, changes were made, but did little to improve the bill. SB 406
as amended, passed the Senate with an 18-5 vote. After further amendment, the bill passed the House 236-103.
The bill went to a conference committee, more changes were made and went back to both chambers for another
vote. The Senate adopted the conference committee report 18-4 and the House adopted it 220-141 (not a veto
proof majority). The final version changes the gross negligence provision to a loser pays system in which an injured patient who rejects a low ball offer from the medical provider can still file a conventional lawsuit, but if they lose they will have to pay the medical provider’s legal fees and costs. The bill requires any dispute on medical treatments and payments to go to a hearings officer who is not a medical specialist and there is no provision on who pays for the injured’s medical experts , nor is there any funding included in the bill to pay for hearings officers. The final version includes the one-size-fits-all schedule of payments for injuries. That version went to the Governor, who vetoed the bill, naming it unbalanced and unfair. In working to support that veto, the New
Hampshire Association for Justice (NHAJ) stood with professional malpractice insurance providers, victim
Advocates, advocates for civil justice, and even the New Hampshire Union Leader which wrote a veto-override-day editorial calling for the legislature to support the gubernatorial veto. Despite the unprecedented breath and cohesion of the anti-early-offer advocates, both the House and the Senate voted to override the veto. The bill will become effective January 1, 2013.
Effective Advocacy in a Challenging Environment
Thanks to our strong legislative presence, consistent messaging and strategic choices, NHAJ helped to defeat a
large number of bills that posed real threats to the civil justice system.
HB 1181 -- This bill established procedures for offers of judgments in civil cases based on Rule 68 of the Federal
Rules of Civil Procedure. This meant that if the judgment that the offeree finally obtained was not more favorable
than the unaccepted offer and the court found that the offeree was unreasonable in rejecting the offer, the
offeree would be required to pay the costs incurred, including reasonable attorney’s fees, after the offer was
made. The bill passed the House, but because an identical bill was killed in the first year of the session, the Senate
rejected it under its rules and sent it back to House.
HB 1386 – This was another offers of judgment bill requiring that if an order was 120% or more, plaintiff would get all expenses including attorney fees incurred after non-acceptance plus 8% prejudgment interest. If the order was 80% or less, defense would get expenses and attorney fees after non-acceptance. This bill was reported out of
House Judiciary as Inexpedient to Legislate which was adopted by the House.
HJR 22 and HB 1724 -- This joint resolution urged engine coolant and antifreeze manufacturers to add an aversive agent to render them unpalatable. HB 1724 required manufacturers to do this and gave them immunity from liability if they did. Both bills were reported out as Inexpedient to Legislate by the House Science, Technology & Energy Committee which was adopted by the House.
HB 1180 –This bill intended to distinguish between punitive damages and pain and suffering and limit jury
instructions so that pain and suffering would not be considered when determining liability. Also, level of
wrongdoing could not be considered when assessing damages. The bill was reported out of the House Judiciary
Committee as Inexpedient to Legislate which was adopted by the House.
HB 1459 -- This bill required the Supreme Court to adopt rules regarding early dismissal of frivolous civil actions
and award of attorney’s fees upon such early dismissal. The bill also required the Supreme Court to adopt rules
implementing an expedited procedure for civil cases where damages are $100,000 or less. The bill also established
the allocation of litigation costs related to settlement offers. The House Judiciary Committee reported this out as
Inexpedient to Legislate which was adopted by the House.
HB 1178 -- This bill required the losing party to pay the prevailing party’s attorney’s fees and court costs in tort
actions. The court could waive a portion of the amount the losing party was required to pay, if the losing party was
able to prove inability to pay the entire amount of attorney’s fees and court costs. This bill was reported out of the
House Judiciary Committee as Interim Study which was adopted by the House.
SB 17 -- This bill rendered certain statements by medical care providers to an alleged victim and the alleged
victim’s relatives and representatives inadmissible as evidence in any medical injury action. The Senate Judiciary
Committee reported this out as Inexpedient to Legislate which failed on the floor. Instead the Senate passed it by
voice vote. The House amended and passed the bill, but the Senate voted non-concur on a committee of
In November all state representatives and Senators are up for election. New bills for the 2013 session will be filed
shortly after that.