New Hampshire’s Exclusive Remedy Rule

State Snapshot

BASIC RULE

In New Hampshire, workers’ compensation is the exclusive legal remedy an employee has for work-related injuries or occupational diseases against their employer and the employer’s insurer. RSA 281-A:8.

This means that the employee cannot sue the employer in tort (where the employee might obtain monetary damages) for covered injuries, such as by claiming that the employer’s negligence caused his injury. The rule also applies to a surviving spouse or dependent who attempts to sue the employer in tort.

INTENTIONAL INJURY EXCEPTION

The rule does not apply to injuries that the employer intentionally inflicted. To establish intent, the employee must show, at minimum, that the employer was substantially certain the injury would occur. It is not enough for the employee to establish that the employer acted negligently or recklessly.

THIRD PARTY LAWSUITS

The exclusive remedy rule does not apply to lawsuits against third parties. For example, if an employee is injured by defective equipment manufactured by another company, the employee may still sue that other company.

WRONGFUL TERMINATION

Employees may sue their employer for wrongful discharge or constructive discharge. If a physical or mental injury results from that discharge, then the employee must choose to either sue in tort or file a claim for workers’ compensation benefits. RSA 281-A:8, III.

For the ins and outs of exclusive remedy rules across the country, head to Simply Research.

RECENT CASES

Grady v. Jones Lang LaSalle Construction Co., No. 2017-0371 (NH 08/08/18)

The plaintiff was an employee of A&M Roofing. That company was a subcontractor hired by Jones Lang LaSalle (the general contractor) for a project on premises owned by Liberty Mutual. While using a propane torch without proper safety equipment, the plaintiff’s glove ignited, causing injury. After receiving workers' compensation benefits from A&M, the plaintiff sued the general contractor and the property owner for negligence. He argued that Liberty Mutual was vicariously liable for the subcontractor's negligence. The court ruled that allowing this claim would effectively force the employer to pay damages beyond workers' compensation for its own negligence. This was because A&M had agreed to indemnify the owner (Liberty Mutual) from any claims arising from A&M’s negligence. That meant, if lost in court, A&M would have to pay any damages to the plaintiff. This would "undermine" the exclusivity provision, which is designed to protect employers from such tort actions in exchange for providing guaranteed benefits. The New Hampshire Supreme Court affirmed the trial court’s judgment for the defendants.

Gascard v. Franklin Pierce University, No. 14-cv-220-JL (N.H. 03/11/15)

An art professor sued the university where she worked for negligence. She alleged that the university failed to properly supervise administrators and protect her from bullying that caused her mental distress. Because her injuries were covered by workers’ compensation, she was barred from suing her employer based on the exclusivity rule.

THE EXCLUSIVE REMEDY RULE IN NEARBY STATES

Connecticut

Massachusetts

New Jersey

New York

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