Congratulations, Attorney Cabrera: 40 Under Forty, New Hampshire Union Leader 2021 Class

Congratulations, Attorney Cabrera: 40 Under Forty, New Hampshire Union Leader 2021 Class

Each year the New Hampshire Union Leader recognizes forty individuals for their work in their professions, their communities, and for the the State of New Hampshire. Please check out this year’s class of “extraordinary young people” in the 20th Anniversary Edition!


Case Summary — Wrongful Death

Attorney Waystack brought a lawsuit on behalf of the family of a deceased logging company employee who was killed in a workplace accident.  The deceased employee (a shear operator) was run over by the driver of a low-bed truck while helping the truck driver install snow chains on the truck that was transporting his logging equipment.

A legal challenge arose over the fact that the truck driver and shear operator were both employed by the same logging company.  Defense raised the so-called “worker’s compensation immunity” defense pursuant to RSA 281-A, which prevents an employee from suing any coworkers employed by the same company.  The defendant filed a judgment motion in the U.S. District Court of NH, seeking to dismiss the case on this ground.  Attorneys Waystack and Cabrera successfully overcame this defense, convincing the Court that there was a “jury question” as to whether the truck driver, although a co-employee, was the “borrowed servant” of a separate trucking company that owned the truck at issue in this suit.  As a result, the lawsuit could proceed and the family could seek justice.

Because the deceased shear operator’s widow was receiving worker’s compensation benefits from logging company, there were both tort and worker’s compensation legal issues to be resolved.  After prevailing on the summary judgment motion, this case settled at mediation for a substantial sum, with all subrogation liens being waived.

Waystack Frizzell Assists Nonprofit in Obtaining $158,000 in Grant Funding

Attorney Sandra Cabrera of Waystack Frizzell recently assisted the 501(c)(3) nonprofit organization, Colebrook Community Child Care (“CCCC”) in securing over $158,000 in grant funding from the Northern Borders Regional Commission (“NBRC”).

CCCC owns the child care center known as Country Day School in Colebrook, New Hampshire.  It will be using this grant to renovate its existing childcare facility; provide teacher training and create new programs.  Attorney Cabrera is assisting CCCC in making new partnerships with other entities interested in child care, including the public schools, recreation programs, and other related businesses.

NBRC is a Federal-State partnership for economic and community development within the most distressed counties of Maine, New Hampshire, Vermont, and New York.  This year, NBRC received 152 applications this year for the State Economic & Infrastructure Development grant, requesting more than $43,000,000 in funding. NBRC chose 45 applications, funding only 28% of all applications. A total of just under $14M was awarded for federal fiscal year 2019 in this program.

Trucking Company is not Immune from Liability when a Logging Company Employee was Struck and Killed by a Logging Truck

Attorney Waystack and co-counsel Attorney Gregory Howe of Newport, Vermont, successfully represented a widow and her two children in a wrongful death claim after their husband and father was killed in a horrific workplace accident. The deceased logging company employee (who worked as a shear operator) was run over by the driver of a low-bed truck while helping the truck driver install snow chains. This truck was owned by a separate corporation that was formed specifically for the purpose of providing transportation services for the logging company. At the time of the fatal accident, the truck was being used to transport logging machinery.

The defendant trucking company argued it was immune from liability under NH RSA 281-A:8, the workers compensation statute (the so-called “workers compensation bar”). This statue, in part, prevents a co-employee from bringing an action against another co-employee. Both the decedent and the truck driver were W-2 employees of the logging company at the time of the death. The defendant trucking company argued this co-employee status barred the lawsuit under this statue.

The defendant filed a summary judgment motion on this issue (and others) in the U.S. District Court of NH. Waystack Frizzell, on behalf of the widow and her children, argued that the truck driver was a borrowed servant of the trucking company at the time of the tragedy, and therefore was not a co-employee of the decedent at the time.

The Court denied the defendants’ summary judgment motion, holding that the issue of whether the truck driver was a borrowed servant of the trucking company at the time of the death was a material disputed fact that must be resolved by the jury.   Specifically, the Court stated that the “plaintiffs marshal sufficient evidence for this question to be put to a jury.” The Court reaffirmed this ruling after the defendant filed a motion to reconsider.

Ultimately, the case settled at mediation for the full limit of the trucking company’s liability policy, which was for one million dollars. Additionally, the widow and her family received another one hundred-thousand-dollar settlement from the worker’s compensation carrier, and all subrogation liens by the worker’s compensation carrier were waived.

New Non-Profit Takes Over Country Day School

COLEBROOK, New Hampshire (April 12, 2019) – Country Day School is pleased to announce that a new non-profit organization, Colebrook Community Child Care (“CCCC”), will be acquiring its child care center. CCCC has partnered with Country Day School’s former owners, Amy Brooks and Dana Weir, to complete the transition without disruption to services. Country Day School provides exceptional child care and is one of only three centers in Coös County that is accredited by the National Association for the Education of Young Children (“NAEYC”). CCCC’s mission is to continue to fill the child care and early childhood development needs in Colebrook and surrounding areas.

The new organization, CCCC, is served by a talented and diverse board of directors consisting of local community members with backgrounds in early childhood education, health care, small business administration, forestry mensuration, law enforcement, and Country Day School parents. Katelyn Ryder, a talented and experienced Country Day School teacher, has been promoted to Acting Center Director. Amy Brooks, Country Day School’s founder, is serving as its Pedagogical Administrator (training teachers and advising on curriculum, among other services). Michelle Rancourt of Rancourt Trucking, Inc. is providing volunteer bookkeeping services.

As a non-profit, CCCC will benefit from lower operational costs as well as eligibility for a variety of grant funding sources. In particular, the Coös County Job Creation Association (“CCJCA”), another local non-profit organization, has provided significant grant funding to assist with this transition. CCCC’s President, Devon Phillips, commented that “we are so grateful for CCJCA’s belief in our mission—we simply could not have taken over Country Day School without its assistance.” CCCC’s new board of directors is already working on several additional exciting grant opportunities that can be used to improve its facilities, materials and offer new training opportunities to its teachers.

For more information about CCCC, or if you wish to help CCCC with its mission to continue providing high-quality child care and early childhood education, please contact Sandra Cabrera of Waystack Frizzell at 603-237-8322. The center is now accepting applications for new students, and its staff would be happy to give you a tour of the facility and a chance to meet its talented teachers.

Court Upholds Colebrook Selectmen’s Vote against a Right-to-Know Challenge

Jules A. Kennett, a Colebrook resident, brought a lawsuit against the Town of Colebrook (“Town”), asking the Court to overturn the Town’s decision to participate in the Coos County Recycling Program (“County Program”).  Mr. Kennett represented himself at trial, and the Town of Colebrook was represented by Attorney Jonathan Frizzell of Waystack Frizzell, Trial Lawyers.  At a trial held on January 26, 2017, the Court considered numerous exhibits and the testimony of seven witnesses.  On March 20, 2017, the Court issued a lengthy written decision (click HERE to read the decision), finding in favor of the Town on all issues.

The County Program is a program where the recyclables from several towns are collected and transported to a facility in Stewartstown.  At that facility, inmates from the Coos County House of Corrections prepare the recyclables for sale.  Until recently, Colebrook had been preparing its own recyclables for sale, which included weighing the materials, grinding glass products, baling paper, etc., and then transporting them for sale once enough materials had been stockpiled to justify the cost of transportation.

On November 23, 2015, at a properly noticed meeting, the Town’s three selectmen, Raymond Gorman, Suzanne Collins, and Greg Placy, voted to have the Town stop managing its own recyclables, and to instead join the County Program where recyclables would be managed using inmate labor.  The Court, in its decision, noted that joining the County Program in 2017 would save the Town a significant amount of money, and, therefore, the Selectmen’s vote was “seemingly [a] sound financial decision.” (Order, footnote 3.)  After the November vote, on December 11, 2015, the Town’s three Selectmen, Town manager, road agent, and an employee from the Transfer Station met with representatives of the County Program.  The meeting took place at the Town’s Transfer Station.  The focus of the meeting was to examine the Transfer Station’s equipment to see what changes, if any, needed to be made to the Town’s facilities before the transition to the County Program.  This meeting was not noticed as a “meeting” pursuant to the Right-to-Know law.  Mr. Kennett alleged that the failure to properly notice this meeting, which included the attendance of a quorum of the Selectmen, violated the Right-to-Know law, and, therefore, he asked the Court to invalidate the vote to join the County Program.

The Court held that the December meeting did not constitute a meeting as defined by the Right-to-Know law because it was not “convened for the purpose of discussing or acting on any matter within the Selectmen’s authorities, but was rather an opportunity merely to discuss the logistics of the Town’s transition to the County Program.”  Since it was not a meeting as defined by the law, the failure to notice the meeting was not a violation of the law.  The Court further found that the action Mr. Kennett sought to invalidate (the vote to join the County Program) was not taken at the December meeting, but rather was taken at the properly-noticed November meeting, which did comply with the Right-to-Know law.  The Court lastly found that Mr. Kennett’s allegation that Suzanne Collins had a conflict of interest due to her previous positions within the county was completely unfounded.  The Court denied Mr. Kennett’s prayers for relief on all issues, and upheld the Town’s actions.  To read the Court’s decision, click HERE.

School is not Immune from Liability when Student is Injured in Shop Class

For a copy of the Court’s order, CLICK HERE.

Facts: Attorney Frizzell successfully represented a young high school student who lost most of his right hand in an industrial machine during his shop class.  The machine was an old, purchased by the school in approximately 1970, and students used it to bend steel by hand feeding a sheet of metal in between two large metal rollers.  When feeding metal into the machine, the Plaintiff’s gloved hand became caught in the rollers, pulling most of his fingers into the machine.  He tried to stop the machine using its emergency trip wire and the stop button, but he could not get them to work.  Therefore, he pulled his hand out, amputating four fingers and part of his hand.  The Plaintiff had been instructed to wear gloves while operating this machine by the shop teacher.

Claims: The Plaintiff sued the school (among other defendants), arguing (1) the instructor negligently instructed and supervised the Plaintiff, specifically that he instructed the Plaintiff to wear gloves while operating industrial machines with moving parts contrary to industry safety standards, (2) that the school negligently maintained the machine, causing the machine’s emergency trip wire to malfunction during the incident, and (3) the school negligently purchased and maintained the machine because its design included an unsafe recessed stop button, as opposed to a safer mushroom-head stop button that extends above its surroundings.

Common Law Immunity: The school moved for summary judgment, asking the Court to dismiss the case based on statutory and common law municipal immunity.  The Plaintiff objected.  Under New Hampshire Common Law, schools might be immune from liability for their teachers’ actions if the Court determines that exposing the school to liability would focus a “stifling attention” on the teacher’s job performance, such that the teacher is deterred from effectively performing his discretionary duties because of a fear of litigation.  The Court held that the school is not immune in this case, because student safety is always of paramount importance to teachers.  In other words, a fear of litigation would not exert any significant additional stifling attention on the teacher because the importance of student safety was already paramount.  Regarding the school’s maintenance of the trip wire and failure to retrofit the stop button, the Court held that it was not clear whether the school affirmatively decided not to fix the trip wire or button, or if it overlooked the problems.  Therefore, because immunity is not a defense to a claim of mere inaction or inattention, the school was not entitled to immunity on these claims either.

Statutory Immunity: Under New Hampshire RSA 507-B:15, schools are immune against claims relating to instruction, monitoring, and supervision of students.  However, there is an exception to this immunity if the claims relate to the “operation” of its “physical premises.”  The Plaintiff argued that this exception applied in this case, and the Court agreed.  RSA 507-B:2’s premises liability exception requires a nexus between the claim and the governmental unit’s ownership, occupation, or operation of its physical premises.  The Court held that the teacher’s instruction to wear gloves while operating the machine constituted a part of the “operation” of the school’s physical premises; therefore, the Court denied the defendant’s Motion for Summary Judgment based on statutory immunity.

Conclusion:  After the Court denied the defendant’s Motion for Summary Judgment, the parties settled the case during private mediation.  For a copy of the Court’s order, CLICK HERE.

Successful Personal Injury Settlement – Negligent Truck Driver vs. Bicyclist

A local North Country couple recently obtained a settlement for the full limits of insurance coverage after they were run down by the defendant in his truck.  Tragically, this nightmare occurred while the couple was enjoying what was supposed to be a relaxing summer vacation.  On a bright, warm, and sunny day, they were riding their bicycles lawfully through a cross walk on a bike path, when the defendant recklessly drove through a stop sign, running over the plaintiff.    The emergency responders found the plaintiff with his legs underneath the defendant’s large pick-up truck, suffering from severe and permanent injuries.

As a result of the defendant’s negligence, the plaintiff sustained severe injuries, including both a left and right pneumothorax (separation of the lung from the chest wall), a left plural effusion (liquid buildup in that space), in addition to numerous contusions, lacerations, bruises, swelling, and inflammation.  He was rushed, via helicopter, to a trauma center, where he was hospitalized for an extended period of time.

The healing process for multiple displaced rib fractures, pneumothoraces, and a pleural effusion is slow and painful.  The plaintiff endured significant pain for nearly a year after the collision.  The greatest pain was at night, and, therefore, he was unable to sleep in his own bed.  Instead, he slept alone for months on a recliner in his living room, because the elevation helped ease some of his pain.

The plaintiffs were facing significant medical bills and they were unsure what they should do to protect their rights.  They reached out to Attorney Sandra Cabrera, who immediately reviewed the accident report and the plaintiff’s medical records.  She guided them through the red tape of dealing with insurance companies.  Recently, Attorney Cabrera assisted the plaintiffs in reaching a settlement for the full limits of the available insurance coverage.  Settlement was obtained without the need for filing a lawsuit.  The plaintiffs were relieved they were not exposed to the stress of depositions or a trial, and they are grateful for the support and assistance from Attorney Cabrera and the staff at Waystack Frizzell through this difficult time.

The attorneys at Waystack Frizzell, Trial Lawyers have extensive experience handling personal injury cases.  If you or a loved one has been injured, contact one of our attorneys to protect your rights and to receive professional support though this difficult experience.

Favorable Opinion on the Value of Medical Services in an Injury Case

Our firm recently added an important victory on the side of families and workers dealing with injuries.  A copy of the Court’s order can be read HERE.

Attorney Philip Waystack recently represented a North Country couple who were injured in an automobile collision caused by the negligence of the defendant.  The plaintiffs claimed their medical bills as damages in the case.  The defendant argued that the full cost of the medical bills should not be admissible on the issue of damages.  The defendant essentially wanted a credit for any amount of the medical bills that were written-off, or discounted, through negotiations between the medical providers and the plaintiffs’ health insurance company.

There is currently a split of authority in the lower courts of New Hampshire on the issue of whether the lesser negotiated amount paid by health insurance companies is the relevant measure of damages, as opposed to the initial face value of the medical bill.

The Court, in an order written by Coos County Superior Court Justice Peter Bornstein, agreed with the plaintiffs, and held that (1) the face value of a medical bill is relevant and admissible on the issue of the reasonable value of medical services, and (2) any discounts or write-offs health insurance companies obtain are a benefit within the meaning of New Hampshire’s collateral source rule and, therefore, are inadmissible at trial and cannot be used to reduce the plaintiffs’ damage award.

Until the New Hampshire Supreme Court resolves this dispute there will continue to be a lack of clear direction on this important issue.  We are glad that we were able to obtain this victory and assist other trial lawyers throughout New Hampshire who are litigating this ongoing issue.