privity rule in New Hampshire

2002In Simpson v. Calivas, 139 N.H. 1, 4 (1994), we recognized an exception to the privity requirement with respect to a will beneficiary and held that an attorney who drafts a testator’s will owes a duty to the beneficiaries to draft the will non-negligently.

2002With respect to the negligence claim, we concluded that, “although there is no privity between a drafting attorney and an intended beneficiary, the obvious foreseeability of injury to the beneficiary demands an exception to the privity rule.” Id. at 5-6 .

2007Spherex, Inc. v. Alexander Grant & Co., 122 N.H. 898, 903 (1982) (“Our reluctance to apply the privity rule has extended to allowing a proper plaintiff to recover for mere financial loss resulting from the negligent performance of services.”).

1997Moreover, some fifteen years ago this court noted that “we have expressed our disfavor for the privity doctrine in personal injury cases.” Spherex, Inc., 122 N.H. at 903 , 451 A.2d at 1311 .

1994Id.

1982Robinson v. Colebrook Savings Bank, 109 N.H. 382, 384-85 , 254 A.2d 837, 839 (1969).

2020The court denied the plaintiff’s motion because it remained convinced that the First Circuit’s privity standard, see Airframe Systems, Inc. v. Raytheon Co., 601 F.3d 9, 17-18 (1st Cir. 2010), was appropriate given the circumstances.

2020Thus, under the law of the First Circuit, “privity is a sufficient but not a necessary condition for a new defendant to invoke a claim preclusion defense,” Airframe, 601 F.3d at 17 , whereas New Hampshire law provides that a nonparty is “bound by the doctrine of res judicata only if he is in privity with a bound party.” Waters v. Hedberg, 126 N.H. 546, 549 (1985) (emphasis added). 3 The defendant nonetheless argues that the trial court was justified in adopting the First Circuit’s privity standard because res judicata must be determined on a case-by-case basis, and the “unique scenario” of suc

2020Thus, under the law of the First Circuit, “privity is a sufficient but not a necessary condition for a new defendant to invoke a claim preclusion defense,” Airframe, 601 F.3d at 17 , whereas New Hampshire law provides that a nonparty is “bound by the doctrine of res judicata only if he is in privity with a bound party.” Waters v. Hedberg, 126 N.H. 546, 549 (1985) (emphasis added). 3 The defendant nonetheless argues that the trial court was justified in adopting the First Circuit’s privity standard because res judicata must be determined on a case-by-case basis, and the “unique scenario” of suc

2020See Sleeper, 157 N.H. at 533 .

1994See Kirgan v. Parks, 478 A.2d 713, 719 (Md.

1990The statement of its Coverage J provides, insofar as relevant, that “[n]o judgment against [an underlying tort defendant]... shall be conclusive, as between the insured and the company ... unless such judgment is entered pursuant to an action prosecuted by the insured with the written consent of the company.” This language reflects an underlying contractual assumption that as a general rule such a judgment will bind the parties upon satisfaction of the written consent condition, the clear object of which parallels the privity requirement of collateral estoppel, see Daigle v. City of Portsmouth

1990The statement of its Coverage J provides, insofar as relevant, that “[n]o judgment against [an underlying tort defendant]... shall be conclusive, as between the insured and the company ... unless such judgment is entered pursuant to an action prosecuted by the insured with the written consent of the company.” This language reflects an underlying contractual assumption that as a general rule such a judgment will bind the parties upon satisfaction of the written consent condition, the clear object of which parallels the privity requirement of collateral estoppel, see Daigle v. City of Portsmouth

1982Lenz v. Company, 88 N.H. 212, 214 , 186 A. 329, 330 (1936).

1982Lenz v. Company, 88 N.H. 212, 214 , 186 A. 329, 330 (1936).