2005 Spring, 64. Lex Loci A Survey of New Hampshire Supreme Court Decisions.

AuthorBar Journal Author - Attorney Charles A. DeGrandpre

New Hampshire Bar Journal


2005 Spring, 64.

Lex Loci A Survey of New Hampshire Supreme Court Decisions

New Hampshire Bar Journal Volume 46, No. 1, Pg. 64 Spring 2005 Lex Loci A Survey of New Hampshire Supreme Court Decisions Bar Journal Author - Attorney Charles A. DeGrandpre

Among the many interesting decisions handed down by our Supreme Court in recent months are several cases of first impression. For example, Rosa v. Partners in Progress, Inc., opinion issued March 4, 2005, involved a first impression question concerning the rights of an illegal alien (here a Brazilian citizen) suing in New Hampshire in tort for injuries sustained while working at a New Hampshire Wal-Mart construction site. A unanimous Supreme Court, speaking through Justice Dalianis, first considered whether the defendant was precluded completely from bringing a claim for lost earning capacity because of his status as an illegal alien. The Court, citing to general law that holds that illegal aliens have rights of access to courts and are eligible to sue therein to enforce contracts and address civil wrongs, such as negligently inflicted personal injuries, ruled that "[w]e see no reason to separate an illegal alien's claim for lost earning capacity from the umbrella of other claims that he may make under tort law, for '[s]urely the effect on the worker of his injury has nothing to do with his citizenship or immigration status.'"

The Court then went on to address whether an illegal alien's claim for loss of earning capacity would be measured by what the illegal alien could have earned (but for his injury) unlawfully working in the United States or should his right of recovery be measured "by what the illegal alien could have earned lawfully working in his country of origin." The Court analyzed federal cases on this issue and held that "generally an illegal alien may not recover lost United States earnings because such earnings may be realized only if that illegal alien engages in unlawful employment." Despite this general rule, the Court went on to rule that "[A] person responsible for an illegal alien's employment may be held liable for lost United States wages if that illegal alien can show that the person knew or should have known of his status, yet hired or continued to employ him nonetheless."

The Court then proceeded to the third issue - the extent to which a defendant may introduce evidence of the illegal alien's status to rebut a claim for lost United States earnings. The Court held that "[g]enerally, an illegal alien may not recover lost United States earnings. Thus, an illegal alien's status, though irrelevant to the issue of liability,. . . .is relevant on the issue of lost earnings," although the Court recognized that the evidence of his illegal alien status might be prejudicial to the illegal alien's case.

Another example of our precedent-shattering Supreme Court is its opinion in Durham v. Durham, opinion issued February 24, 2005. Here a unanimous Supreme Court remade the law concerning corporate derivative actions. The general rule followed in New Hampshire up to now is "that corporate claims are to be prosecuted either by the corporation or derivatively, but not through direct action by a shareholder." The plaintiff, a stockholder in a closely held corporation, brought an action against his fellow three shareholders directly and did not name the corporation as a party to the action. The trial court dismissed the plaintiff's action. The plaintiff appealed arguing that "practical and policy reasons justify allowing a direct, as opposed to derivative, action against the defendants because the plaintiff is the sole aggrieved shareholder and is suing all the remaining shareholders." The Court bought this argument holding that "[t]he derivative/direct distinction makes little sense when the only interested parties are two individuals or sets of shareholders, one who is in control and the other who is not." The Court concluded that

[i]n cases such as this one, where the principles underlying the derivative proceeding are not served, the trial court should have the discretion to allow the plaintiff to pursue a direct claim against the corporate officers. . . .While we agree that consistency in the law is important, we also recognize that the derivative proceeding involves burdensome, and often futile, procedural requirements when a minority shareholder seeks to redress wrongful behavior by...

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