The Business & Industry Association continues to oppose a bill, which as currently written would dramatically raise caps for wrongful death loss of consortium claims. BIA is leading a group of 18 organizations representing all sectors of the New Hampshire economy in opposing SB 462. Please read the letter submitted to the state Senate presented below:

April 2, 2024

Dear members of the Senate:

The Business & Industry Association, New Hampshire’s statewide chamber of commerce and leading nonpartisan business advocate, joins organizations representing all sectors of the state economy to urge you to oppose SB 462, as amended by the Senate Judiciary Committee. The bill would drastically increase the damages that could be awarded in wrongful death lawsuits. This legislation is part of a national plaintiffs’ lawyer effort and not related to any New Hampshire problem.

As indicated below, opposition to SB 462 includes 20 organizations representing thousands of New Hampshire individuals. Most of these organizations also oppose another plaintiffs’ lawyer bill, SB 423, mandating pre-suit disclosure of liability policy limits. By contrast, support for these bills came from a handful of plaintiffs’ personal injury lawyers and their association.

The proponents of SB 462 amazingly and without evidence claim that the bills would not increase costs, but there can be no question that these bills would result in insurance premium increases that could be substantial. Concern over costs is why Governor Hochul vetoed a proposal in New York similar to SB 462 in December. We have suggested the New Hampshire Legislature look to the state Insurance Department for an independent cost analysis to enable the Senate to make an informed decision. There is no pressing need to pass a bill without knowing the facts and ramifications.

Contrary to what has been said, New Hampshire is in the mainstream among all states on this issue. As the attached review of state wrongful death laws concludes, “In New Hampshire, loss of consortium damages are a supplemental add-on to recovery that is broader than many other states. When considering the broader legal landscape of wrongful death recoveries and consortium, New Hampshire’s allowance of a capped emotional harm recovery for consortium claims is in the mainstream.”

Therefore, we urge you to vote this bill, which would unnecessarily increase costs on virtually every sector in the state, inexpedient to legislate.

Thank you for your attention to this important matter.

Sincerely,

Michael Skelton

President & CEO

Business and Industry Association

Co-signers:

American Council of Engineering Companies of NH

American Property Casualty Insurance Association

Associated General Contractors of NH

National Association of Mutual Insurance Companies

National Federation of Independent Business

NH Association of Domestic Insurance Companies

NH Association of Insurance Agents

NH Association of Residential Care Homes

NH Health Care Association

NH Hospital Association

NH Medical Society

NH Nurse Practitioner Association

NH Society of Physician Assistants

NH Retail Lumber Association

NH Municipal Association

NH Association of Counties

NH Automobile Dealers Association

NH Association of Nurse Anesthesiology

Professional Insurance Agents of NH

Ski NH

Please review the following fact sheet for additional information.

SB 462: New Hampshire’s wrongful death act provides fair compensation

New Hampshire’s maximum $150,000 award for spousal consortium claims and $50,000 maximum for child and parental consortium claims must be viewed in the context of the full range of damages recoverable in wrongful death actions. In other respects, New Hampshire law permits far more generous awards than other states. New Hampshire should not authorize unlimited damages for loss of consortium.

Fact 1: New Hampshire law allows the administrator of a decedent’s estate to recover a broader range of damages than most states.

• An estate is entitled to recover damages for not only pecuniary losses such as lost earning capacity and medical bills incurred, but also for any mental and physical pain experienced by the decedent. There are no limits on these types of damages.

• In addition, New Hampshire is one of only a half dozen states that permit recovery of a decedent’s “loss of enjoyment of life” – a highly subjective amount known as hedonic damages – without any limitation.

Fact 2: Loss of consortium damages are unavailable or narrowly allowed in wrongful death actions in some states. Although most states allow some manner of loss of consortium claim arising from a wrongful death, some states do not.

• For example, in New York, there is no recovery for loss of consortium, whether it be spousal consortium for the death of a partner, child consortium for the death of a parent, or parental consortium for the death of a child.

• Other jurisdictions, such as Connecticut and the District of Columbia, recognize spousal consortium claims, but not consortium claims arising from the parent-child relationship.

• Of the states that allow recovery of loss of consortium in wrongful death, around a dozen limit that recovery to pecuniary or purely economic loss – such as the lost value of the decedent’s labor or other services – as opposed to emotional loss. (ID, MN, NE, NV, NM, NC, PA, SD, TN, WA, WY).

• New Hampshire law contains none of these restrictions. It allows recovery of more subjective emotional loss of comfort, society, affection, guidance, and companionship. It does so with the trade-off of limiting those damages.

Fact 3: Some states limit recovery of all noneconomic damages, not just damages for loss of consortium.

• While some state wrongful death acts allow broader recovery for emotional losses that includes loss of consortium, approximately 10 of those states limit noneconomic damages in personal injury and wrongful death cases generally, while 17 states impose specific limits on noneconomic damages in wrongful death cases arising from alleged medical negligence.

• These limits, which range from $250,000 to about $2.3 million are set at higher levels than New Hampshire’s law because, in most instances, they limit the total noneconomic damages that can be awarded in a case (to the decedent as well as the estate), not just damages for loss of consortium.

• In New Hampshire, the amount of noneconomic damages the estate may recover on behalf of the decedent is unlimited.

Conclusion: In New Hampshire, loss of consortium damages are a supplemental add-on to recovery that is broader than many other states. When considering the broader legal landscape of wrongful death recoveries and consortium, New Hampshire’s allowance of a capped emotional harm recovery for consortium claims is in the mainstream. If the Legislature eliminates the statutory maximum award for loss of consortium claims, it is likely that awards for emotional harms will be duplicative, excessive, and fail to fulfill the compensatory purpose of the civil justice system.