New Hampshire Association for Justice - President’s Message - Fall 2023
By: Kimberly Kirkland
The 2023-2024 NHAJ Board of Governors met for the first time in August. We have four new members of the Board of Governors, all of whom have been practicing for less than 10 years. That brings the total number of early career Board members to 12. As noted in my first message, my goal as President is to find ways to engage more new lawyers in NHAJ. With that in mind, at our first Board of Governors’ meeting we asked our early career Board members what they consider most attractive and beneficial about their membership in NHAJ.
We received lots of helpful feedback from them. First and foremost, our early career Board members expressed appreciation to the experienced NHAJ members who take time to share their knowledge and advice on the listserv. They view the listserv as an invaluable practice resource. Thank you to those of you who regularly engage in such dialogue. And to those of you who don’t weigh in regularly, know that there are many newer members who are eager to benefit from your experience.
We also heard from early career Board members that they value the opportunity NHAJ membership provides to participate in efforts to improve the law affecting their clients’ lives. Several new board members spoke about having been drawn to the law, in part, to advocate for legal reforms. The fact that NHAJ advocates for changes in the law that improve access to the civil justice system is meaningful to many of our members. New lawyers working in busy private law practices often don’t have opportunities to keep abreast of what’s happening on the legislative front. NHAJ membership has allowed and encouraged them to be part of a team of like-minded lawyers advocating for causes they believe in.
One of the items on NHAJ’s legislative agenda this year presents an opportunity for us to right a wrong most of us have confronted (or likely will confront) in our work: the caps on recovery for loss of spousal and parental consortium in wrongful death claims. Under RSA 556:12 surviving spouses can claim loss of consortium damages, but recovery is capped at a mere $150,000. Surviving minor children may be awarded damages for loss of parental consortium, but their damages are capped at $50,000 per child. In 2011 Judge DeClerico described the New Hampshire wrongful death statute as “lying in the backwater of the modern stream.”¹ In fact, according to AAJ, New Hampshire’s caps on loss of consortium claims in wrongful death cases are the lowest in the country.
When the wrongful death statute was originally passed in New Hampshire in 1887, there was no provision for the award of loss of consortium damages. RSA 556:12 was amended to permit loss of consortium claims for spouses and minor children in 1998 and 1999, respectively. The caps on such awards have not changed over the ensuing years. Those caps were wrong as a matter of policy when enacted but are even more egregious today. In a personal injury case where a married plaintiff is injured but does not die, a jury is entrusted to use its judgment to decide how to compensate for the spouse’s loss of consortium, without any limitation. Juries are equally capable of making that same judgment for a surviving spouse.
Moreover, a negligent tortfeasor should not be shielded from accountability for the full extent of the harm he causes simply because the victim of that negligence dies. Mediators often tell us that wrongful death cases have less value as compared to those in which the plaintiff survives. The caps on damages of surviving spouses and minor children are a significant cause of this diminution in value and result in an unjustifiable benefit to the tortfeasor.
Our legislative committee is working with legislators who will be sponsoring a proposed bill to remove these caps. There are numerous ways you can get involved. If you have stories of wrongful death cases that vividly demonstrate the unfairness of the loss of consortium caps, please let us know. Some of you and your clients can help us by testifying at legislative hearings. We could also use your and your clients’ help contacting legislators about the bill when the time comes.
NHAJ is proactively advocating for several other legislative changes this year that will be important to our clients. See Marissa’s legislative update, a new recurring feature to the NHTLQ, in the pages to come. Please let us know if you’d like to join our legislative efforts.
Keep up the good fight.
References:
Lacaillade v. Loignon Champ-Carr, Inc., No. 10-cv-68-JD, 2011 U.S. Dist. LEXIS 116596, at *12 (D.N.H. Oct. 7, 2011) (quoting Maguire v. Exeter & Hampton Elec. Co., 114 N.H. 589 (1974)(discussing the wrongful death statute in the context of a choice of law issue.)