2005-834, NEW HAMPSHIRE INSURANCE GUARANTY ASSOCIATION v. ELLIOT HOSPITAL

Act), RSA chapter 404-B (1998), not to require the plaintiffs in an underlying interpreted the New Hampshire Insurance Guaranty Association Act (Guaranty

denying NHIGA’s cross-motion for summary judgment. The trial court granting summary judgment to the respondent, Elliot Hospital (Elliot), and Association (NHIGA), appeals a decision of the Superior Court (Barry, J.) DUGGAN, J. The petitioner, New Hampshire Insurance Guaranty

Association and ProMutual Insurance Group, as amici curiae. the brief), for New Hampshire Medical Malpractice Joint Underwriting Morrison Mahoney LLP, of Boston, Massachusetts (Michael F. Aylward on

orally), for the respondent.

Wiggin & Nourie, P.A., of Manchester (Gary M. Burt on the brief and

brief, and Mark D. Robins orally), for the petitioner. to press. Errors may be reported by E-mail at the following address: Nixon Peabody LLP, of Manchester, (John E. Friberg, Jr. & a. on the

page is: http://www.courts.state.nh.us/supreme. v.

editorial errors in order that corrections may be made before the opinion goes No. 2005-834 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Hillsborough-northern judicial district Readers are requested to notify the Reporter, Supreme Court of New ___________________________

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as treated as joint tortfeasors in the malpractice plaintiffs’ pleadings.

p. 2 Hitchcock and Elliot are technically codefendants, but they have never been

delivery and newborn resuscitation.

against Elliot and Hitchcock were consolidated for discovery and trial. Thus,

Okongwu; and otherwise failed to appropriately manage the labor, failed to timely and appropriately resuscitate Chukwuemeka anticipate and plan for a difficult birth and a compromised infant; properly manage Dahlia Reid and Chukwuemeka Okongwu.” The cases resuscitate Chukwuemeka Okongwu after delivery; and otherwise failed to during the pregnancy, labor, and delivery; failed to properly manage and Elliot or its agents or employees. and an excess policy. Hitchcock’s Lexington policies provided no coverage for insured by Lexington Insurance Company (Lexington), under both a primary 2

insurance policy issued by PHICO to Elliot.

resuscitation personnel to attend the delivery; failed to properly

failed to properly monitor, evaluate, and manage Dahlia Reid and her child

insurance policy with PHICO Insurance Company (PHICO). Hitchcock was

certain statutory duties to defend Elliot and provide coverage under the writs. PHICO’s insolvency triggered the obligation of NHIGA to undertake suffered significant injuries, including brain damage. PHICO was declared insolvent after the malpractice plaintiffs filed their Reid’s pregnancy, labor and delivery. During the delivery, Chukwuemeka stress during labor; failed to timely notify and arrange for newborn

alleged that Hitchcock, through its agents and employees, “among other things,

At the time of Chukwuemeka’s birth, Elliot carried a primary and excess

Hitchcock Clinic and Hitchcock Clinic, Inc. (collectively, Hitchcock) managed child during labor; failed to recognize and respond to signs of fetal

and employees: In count I of the writ in their suit against Hitchcock, the malpractice plaintiffs

gave birth to Chukwuemeka Okongwu at Elliot Hospital. The Dartmouth- among other things, failed to properly monitor Dahlia Reid and her

against Elliot, the malpractice plaintiffs alleged that Elliot, through its agents against Elliot and one against Hitchcock. In count I of the writ in their suit child’s father (collectively, the malpractice plaintiffs), filed two writs: one Following Chukwuemeka’s birth, Reid and Jonathan Okongwu, the

The record reflects the following facts. On October 7, 1999, Dahlia Reid

insurer before proceeding against NHIGA. We affirm. medical malpractice action to exhaust claims against a codefendant’s solvent judgment. This appeal followed.

p. 3 motion for summary judgment and denied NHIGA’s cross-motion for summary

claim against Hitchcock the covered claim. The trial court granted Elliot’s plaintiffs’ injuries, it would be jointly liable for the entire judgment, making the Hitchcock were to be found at least fifty percent at fault for the malpractice

plaintiffs’ claim against Hitchcock was a claim against an insurer; and (2) if

against the insolvent insurer. NHIGA argued that: (1) the malpractice

exhaustion when a claim against a solvent insurer is the same claim asserted is different from the claim against Elliot, and RSA 404-B:12, I, only requires Hitchcock qualifies as a claim against an insurer, the claim against Hitchcock

Lexington; and (2) presuming that the malpractice plaintiffs’ claim against

parties to Hitchcock’s Lexington policies, have no claim of their own against exhaustion of claims against insurers, and the malpractice plaintiffs, as third Lexington because, among other things: (1) RSA 404-B:12, I, only requires

claim against Hitchcock the covered claim.

other states’ interpretations of similar statutes. malpractice plaintiffs were not obligated to exhaust their rights against

case assigning at least fifty percent of the liability to Hitchcock would make the consider, prior to trial, NHIGA’s argument that a judgment in the underlying with first-party claims against solvent insurers; and (2) it was premature to

whether the moving party is entitled to judgment as a matter of law.

context of the overall statutory scheme, and finally, by looking for guidance to NHIGA filed cross-motions for summary judgment. Elliot contended that the Guaranty Act by focusing first upon its language, then by considering the malpractice plaintiffs may recover under the Lexington policies. Elliot and the purpose and functions of NHIGA and explained that we interpret the amount recoverable from Elliot must be reduced by any amount the Insurance Guaranty Assoc., 154 N.H. ___ (decided Dec. 19, 2006), we described In OB/GYN Associates of Southern New Hampshire v. New Hampshire exhaustion and offsetting requirements of RSA 404-B:12, I, are limited to those Guaranty Assoc. v. Pitco Frialator, 142 N.H. 573, 576 (1998).

moving party and, if no genuine issue of material fact exists, we determine the evidence in the light most favorable to each party in its capacity as the non- In reviewing the superior court’s summary judgment rulings, we consider

malpractice plaintiffs may recover under the Lexington policies; and (3) any

On appeal, NHIGA argues that the trial court erred by ruling that: (1) the

I; (2) any amount payable by NHIGA must be reduced by any amount the their rights under Hitchcock’s Lexington policies, as required by RSA 404-B:12, the malpractice plaintiffs because the malpractice plaintiffs had not exhausted

the superior court for a declaration that: (1) neither it nor Elliot was liable to Before trial of the claims against Elliot and Hitchcock, NHIGA petitioned prerequisite to the applicability of the exhaustion requirement.

p. 4 determine whether that claim was also a “covered claim,” which is the second

to the insured’s claim against its solvent insurer,

against Hitchcock was not a claim against an insurer, it never had to

solvent insurer; and (2) the third-party claim against the insured that gives rise

the person who injured him, B:12, I. Since we hold that the claim against Hitchcock was a claim against an

Because the trial court determined that the malpractice plaintiffs’ claim against an insurer, for purposes of RSA 404-B:12, I. part, and disagree in part. Burke did not address the issue that faces us in this case. claim against an insurer for the purpose of RSA 404-B:12, I. Accordingly, insurer, but only that the malpractice plaintiffs’ claim against Hitchcock was a 404-B:12, I, necessarily encompasses both: (1) an insured’s claim against a malpractice plaintiffs had a direct cause of action against Hitchcock’s solvent

Concord Hospital a covered claim under this chapter shall be reduced by the amount, 126 N.H. 405, 409 (1985), in which we held that an injured Hitchcock was a claim against an insurer. In Insurance Co. exhaust first his right under such policy. Any amount payable on, 120 N.H. 365 (1980), not followed on other grounds by Gould v. The trial court relied upon our decision in Burke v. Fireman’s Fund

Thus, the malpractice plaintiffs’ claim against Hitchcock was also a claim argument that the claim against Hitchcock was a covered claim. We agree in

we held that the term “claim against an insurer” in the first sentence of RSA underlying claim against the insured,” Pitco, 142 N.H. at 578, and in OB/GYN encompasses both the insured’s claim against NHIGA and the third party’s

First, we agree with NHIGA that the malpractice plaintiffs’ claim against insurer which is also a covered claim . . . shall be required to

purpose of RSA 404-B:12, I, and incorrectly failed to address, and accept, its plaintiffs’ claim against Hitchcock was not a claim against an insurer, for the In NHIGA’s view, the trial court incorrectly determined that the malpractice

provision in an insurance policy other than a policy of an insolvent Any person having a claim against an insurer under any

B:12, I, which provides, in pertinent part: Guaranty Assoc., 151 N.H. 590, 595 (2004). At issue in this case is RSA 404against [the restaurant] is different from their claim against the

p. 5 coverage of” [the restaurant’s] insurance policy. The Zhous’ claim

claim” because it could not have “arisen out of” or come “within the

insolvent insurer. amount it was obligated to pay the Zhous on behalf of the restaurant’s amount the Zhous received from the insurer of the drunk driver against the

(DCIGA) assumed the insurer’s obligations.

alcohol prior to the accident.

accident with a drunk driver. [T]he Zhous’ claim against the drunk driver cannot be a “covered after the effective date of this chapter is declared insolvent . . . . argument, explaining: which this chapter applies issued by an insurer, if such insurer

covered claim. District of Columbia cognate to RSA 404-B:12, I, it was entitled to offset the determining that the malpractice plaintiffs’ claim against Hitchcock is also a Id. DCIGA argued that under the insolvent, and the District of Columbia Insurance Guaranty Association

of insurer of the drunk driver and also sued the restaurant that had served him “other than” clause in the Oklahoma version of the statute, excepting “a policy Id. at 349-50. The Zhous settled with the Yao Zhou and Xiu Jan Wu (the Zhous), were involved in an automobile Jennifer Mall Restaurant, Inc., 699 A.2d 348 (D.C. 1997). In that case, Rong More useful guidance on the question before us comes from and not in excess of the applicable limits of an insurance policy to Zhou v.

our statute. Thus, the fact that Lexington is not insolvent is no bar to holding of Oglesby is, for all intents and purposes, already incorporated into policy of the insolvent insurer,” Oglesby, 832 P.2d at 843 (emphasis added), the an insolvent insurer,” RSA 404-B:12, I (emphasis added), rather than “a

“other than” clause in RSA 404-B:12, I, is worded slightly differently than the exhaustion from a source that had nothing to give. Id. Moreover, because the it would be absurd for the nonduplication of recovery provision to require insurer, unearned premiums, which arises out of and is within coverage see Oglesby, 832 P.2d at 843. But Oglesby simply stated the obvious; was also a covered claim did not have to be a claim against an insolvent Court held that under the Oklahoma cognate to RSA 404-B:12, I, a claim that which we cited with approval in Pitco, 142 N.H. at 579, the Oklahoma Supreme In Oglesby v. Liberty Mutual Insurance Co., 832 P.2d 834 (Okla. 1992),

“[c]overed claim” means a net unpaid claim . . . including one for

claim was also a covered claim. The term insurer, however, we must take the next step and determine whether that delivery. p. 6 possibly duplicate a recovery from Elliot for negligence during and after

plaintiffs might receive from Hitchcock for negligent pre-natal care could not

claim against Hitchcock is not a covered claim.

fault.

employer, under a theory of vicarious liability.

alone was charged with negligent pre-natal care. Any recovery the malpractice 6 were charged with negligence during and after Reid’s delivery – but Hitchcock after Reid’s delivery. Plainly, there is some overlap – both Hitchcock and Elliot have brought their claim against Elliot under Hitchcock’s insurance, their Elliot’s agents and employees. Because the malpractice plaintiffs could not during and after delivery could not duplicate a recovery for the negligence of covered claim, because both claims were based upon the same allegation of

with insolvent insurance and also brought a claim against the physician’s

subject to the nonduplication limitations of § 35-1910. plaintiffs accused Elliot’s agents and employees only of negligence during and against the physician under the physician’s employer’s insurance, against the drunk driver’s insurance is not a “covered claim,” see Zhou, restaurant] under the drunk driver’s insurance, the Zhous’ claim Id. at ___. Thus, the underlying plaintiff in OB/GYN did bring its claim Elliot’s agents and employees, a recovery from Hitchcock for its negligence Under those circumstances, the claim against the employer was also the

There, the medical malpractice plaintiff brought a claim against a physician That determination stands in contrast to our decision in OB/GYN.

and after Reid’s delivery, while in their suit against Elliot, the malpractice agents and employees of negligent pre-natal care as well as negligence during Because the Zhous could not have brought their claim against [the In their suit against Hitchcock, the malpractice plaintiffs accused Hitchcock’s is no allegation that Hitchcock bore any legal responsibility for the actions of recovery provision to prevent double recovery or windfall). Moreover, as there for medical negligence, and may even relate to the same loss, See Zhou, 699 A.2d at 352 (explaining purpose of nonduplication of

independent of [the restaurant’s] violation of D.C.Code § 25-121. (distinguishing between “claims” and “losses”), they are not the same claims. drunk driver was based on the driver’s negligent conduct, liable in damages.” 534 A.2d at 1276. The claim against the see id. While the two claims in this case, against Hitchcock and Elliot, are both

Id. at 353.

a member of the public by that violation the tavern keeper may be negligent per se, and that where injuries are proximately caused to intoxicated or apparently intoxicated, renders the tavern keeper keeper of D.C.Code § 25-121(b) (1981), by serving a person already 1268 (D.C. 1987)], held that “the unexcused violation by a tavern drunk driver. Zhou [v. Jennifer Mall Restaurant, Inc., 534 A.2d also a covered claim, p. 7 Hitchcock. RSA 404-B:12, I, applies when a claim against a solvent insurer is

against Elliot, it does not transform a claim against Elliot into a claim against

statute potentially provides an alternative avenue for recovering on a claim B:12, I. NHIGA ascribes too much power to RSA 507:7-e, I(b). While that plaintiffs’ claim against Elliot a claim against Hitchcock, subject to RSA 404-

to include.” (citation omitted)).

BRODERICK, C.J.