NIXON PEABODYLLP

ATTORNEYS AT LAW
900 Elm Street
Manchester, New Hampshire 03101-2031
(603) 628-4000
Fax: (603) 628-4040
Direct Dial: (603) 628-4016
E-Mail: kfitzgerald@nixonpeabody.com

May 20, 2010

VIA HAND DELIVERY

William McGraw, Clerk

Merrimack County Superior Court
163 North Main Street
P.O. Box 2880
Concord, New Hampshire 03302-2880

RE: Georgia Tuttle, M.D., LRGHealthcare and Derry Medical Center, on Behalf of
Themselves and Those Similarly Situated v. New Hampshire Medical
Malpractice Joint Underwriting Association -- Docket No. 2010-E-

Dear Clerk McGraw:

Enclosed for filing in the above-referenced matter please find an original and two copies
of a Petition for Accounting and Equitable Relief as well as a check in the amount of Two
Hundred and Five Dollars ($205.00) to cover the required filing fee. Please prepare Orders of
Notice. Once the Orders are prepared, I will arrange to have them picked up.

Thank you for your attention to this matter. Please feel free to contact me should you
have any questions.

Very truly you

\ Kevin M. Fitzger. d

KMF/cdm

Enclosure

11(058841
 THE STATE OF NEW HAMPSHIRE

MERRIMACK, SS SUPERIOR COURT

2010-E-

Georgia Tuttle, M.D. LRGHealthcare Deny Medical Center

129 Mechanic Street 80 Highland Street 6 Buttrick Road, Suite 102
Lebanon, NH 03766 Laconia, NH 03246 Derry, NH 03038

v.

New Hampshire Medical Malpractice Joint Underwriting Association

by and through its Board of Directors

c/o Merwyn Bagan, M.D.

Chairman
Board of Directors
173 School Street
Concord, New Hampshire 03301

PETITION FOR ACCOUNTING AND EQUITABLE RELIEF

Georgia Tuttle, M.D., LRGHealthcare, and Derry Medical Center, who are all

policyholders in the New Hampshire Medical Malpractice Joint Underwriting Association (the

"JUA") from 1986 to 2010 (collectively, the "Petitioners"), by and through their attorneys,

Nixon Peabody LLP, petition for an accounting and for all relief appropriate based upon the

information obtained.

In support of the relief requested, the Petitioners state as follows:

INTRODUCTION

1. In a case brought by the Petitioners, the New Hampshire Supreme Court ruled

earlier this year that legislation which directed the transfer of funds held by the JUA was

unconstitutional. Tuttle v. New Hampshire Medical Malpractice Joint Underwriting Ass 'n, 159

N.H. 627 (2010). In doing so, the Supreme Court expressly held that the Petitioners had vested

12959761 4
rights in any JUA excess surplus.

2. However, as described below, since the Supreme Court's decision, state officials

have made repeated public statements which suggest that they are not prepared to accept the

Supreme Court's holding. Further, upon demand by the Petitioners, the JUA board of directors

has refused to provide basic information required to determine the exact amount of funds which

are constitutionally protected. This information is vital in order to secure the policyholders'

interest in the JUA excess funds, particularly in light of the ominous statements by state officials.

Accordingly, the policyholders are reluctantly forced to bring this action and seek further judicial

intervention in order to secure their rights as established by the New Hampshire Supreme Court.

PARTIES

3. The Petitioners are either current or past policyholders in the JUA with respect to

the period beginning in 1986 to 2010 and bring this action in their own right and on behalf of all

others similarly situated (together, the "Policyholders" and individually, "Policyholder").

4. Petitioner Georgia Tuttle, M.D. is an individual doing business at 129 Mechanic

Street, Lebanon, New Hampshire and a current JUA Policyholder.

5. Petitioner LRGHealthcare is healthcare charitable trust doing business at 80

Highland Street, Laconia, New Hampshire and a current JUA Policyholder.

6. Petitioner Derry Medical Center is a professional association doing business at 6

Buttrick Road, Suite 102, Derry, New Hampshire and a current JUA Policyholder.

7. Respondent JUA is a joint underwriting association created pursuant to the

authority set forth in RSA 404-C:1. The JUA is governed by a board of directors ("Board"),

which is granted the "authority to exercise all reasonable or necessary powers relating to the

operation of the association." Tuttle, 159 N.H. at 635; N.H. Admin. Rules, Ins. 1703.04(1). The

129597614
2
authority of the Board includes the power to operate and manage JUA funds by investing

premiums. Tuttle, 159 N.H. at 635; Ins. 1703.04(p). The actual insuring functions are carried

out by a "servicing carrier" chosen by the Insurance Commissioner ("Commissioner") from

among member insurers or qualifying non-member insurers, and the Board itself acts as a

servicing carrier if, for any reason, the Commissioner does not appoint one. Tuttle, 159 N.H. at

635; Ins. 1703.05(c), 1702.04. The JUA enters into contracts and conducts its business

independently of the Governor and Council and of the Commissioner. Tuttle, 159 N.H. at 635;

Ins. 1703.04(o).

JURISDICTION AND VENUE

8. This Court has personal jurisdiction over the parties and subject matter

jurisdiction pursuant to RSA 491:7.

FACTUAL BACKGROUND

9. The JUA administers a "mandatory risk sharing plan" authorized by RSA 404-C.

The plan provides access to medical professional liability insurance coverage to medical

providers in the State of New Hampshire. The plan is "mandatory" because all insurers licensed

to write liability insurance on a direct basis in New Hampshire are subject to assessments. Ins.

1702.01.

10. As noted by the Supreme Court, the specific rights and obligations between the

JUA and its Policyholders are set forth in "Assessable and Participating" insurance contracts

which have been unchanged in the relevant provisions since 1986. Tuttle, 159 N.H. at 637; see

also Sample JUA Insurance Contract (attached as Exhibit A hereto).

11. The "Assessable and Participating" language of the insurance contracts provides,

in pertinent part, as follows:

12959761.4
3
 13. Participating Policy Provisions. The named insured shall
participate in the earnings of the [JUAJ, to such extent and upon
such conditions as shall be determined by the board of directors of
the [JUA] in accordance with law and as made applicable to this
policy, provided the named insured shall have complied with all
the terms of this policy with respect to the payment of premiums.

Exhibit A, Conditions, p. 2 (emphases added); see also Tuttle, 159 N.H. at 637 (quoting policy

provision).

12. The JUA's Application for Insurance which is incorporated into the insurance

contract, contains an identical provision on the signature page. See Application for Insurance

(attached as Exhibit B hereto). The Application also contains a pointed disclosure statement

requiring the applicant to acknowledge that the insurance contract is governed by both the

"Assessable Policy Provision" and the "Participating Policy Provision." Id.

13. The Application reiterates that "[t]he named insured shall participate in the

earnings of the company." Each applicant is called upon to agree that he/she/it agreed that any

policy, binder or other agreement for the insurance therein applied for would be subject to the

provision. See id.

14. Each Policyholder who applied for an insurance contract with the JUA thus had

the reasonable expectation — indeed, an unmistakable promise — that if the premiums charged by

the JUA were higher than necessary to cover all actual and anticipated losses and expenses, the

Policyholder would receive distribution of the excess.

15. Ins. 1703.07(d) governs application of the excess surplus resulting from the

premiums remaining after claims and expenses. Pursuant to 1703.07(d), there are only two

options that the JUA may lawfully take when it has an excess surplus: (1) apply it against and to

reduce future assessments of the association or (2) distribute it to the Policyholders. Tuttle, 159

N.H. at 644.

12959761 4
4
 16. Specifically, Ins. 1703.07(d) contains the following mandatory direction:

If premiums written on association business exceed the amount

necessary to pay losses and expenses and to reimburse members
for all assessments pursuant to Ins 1703.07(c), then with review
and approval by the commissioner as being consistent with
the purposes of this chapterl, the board shall authorize the
application of such excess in one or both of the following ways:

(1) Against and to reduce future assessments of the association; or

(2) Distribute the excess to such health care providers covered by

the association as is just and equitable.

Ins. 1703.07(d) (emphases added).

17. In light of the foregoing policy provisions and regulations, the Supreme Court

concluded:

We find that the language of the policies and the regulations, taken
together, confers upon the policyholders a vested contractual right
in the treatment of any surplus. The policies entitle the
policyholder to "participate in the earnings of the [JUA]" and the
incorporated regulations mandate the board's application of excess
funds in one or both of the two specified ways: either against
future assessments, or distribution to the policyholders. Under
either option, the policyholders have a direct financial interest, and
not a mere expectancy, in any excess surplus. Thus, the
policyholders have a vested right not necessarily in the distribution
of the funds, but in the treatment of the funds for their benefit.

Tuttle, 159 N.H. at 644.

18. The Supreme Court's finding stands in stark contrast to the position taken by both

the legislative and executive branches with respect to JUA funds.

19. While the Petitioners' original case was pending in Superior Court, the

Commissioner of Insurance, Roger A. Sevigny, authored an opinion column which was printed

The phrase "with review and approval by the commissioner as being consistent with the purposes of this chapter"
was added in January 2009, along with other changes. See Tuttle, 159 N.H. at 636. These regulatory changes
came as the Department of Insurance was preparing for legislation to transfer JUA excess surplus funds to the
14eneral fund.

12959761 4
5
in at least New Hampshire newspapers. In that column, Commissioner Sevigny made the

following statements: "From my perspective, the Legislature was right to transfer the excess

surplus from the JUA to the general fund"; "The law does not give [JUA policyholders] the right

to a windfall."; "[T]he JUA excess surplus funds belong to us all." "The people of New

Hampshire established the JUA, and they deserve to benefit from it." The JUA Surplus

Rightfully Belongs to the People of New Hampshire, by Roger A. Sevigny, New Hampshire

Union Leader (July 9, 2009) (attached as Exhibit C hereto).

20. Immediately following the Supreme Court's decision earlier this year,

Commissioner Sevigny was widely quoted in the trade press as saying, "The decision leaves the

question wide open about who is entitled to the money.' Best's Insurance News, January 28,

2010 (quoting Commissioner Sevigny) (emphasis added).

21. Governor John Lynch, through his spokesman, has made a series of statements

which similarly demonstrate contempt for the Supreme Court's decision and the adjudicated

rights of the Policyholders. For example:

the Governor's spokesman has made the following comments about the Tuttle decision:

• "The Governor believes taxpayers have a right to use that [JUA] money."
Concord Monitor, April 21, 2010;

• "The governor believes the taxpayers have a right to that [JUA] money and we'll
continue to examine ways to allow that to happen." New Hampshire Union
Leader, April 21, 2010;

• "The JUA was established as a government run and government subsidized

malpractice insurance program for doctors. The doctors who paid their
premiums, got the benefit of the insuance.... The governor agreed with the
attorney general, the insurance commissioner and the Legislature that any surplus
funds rightfully belong to the taxpayers of New Hampshire." The Hotline,
National Journal Group, March 19, 2010; and

12959761 4
6
 • We continue to believe the strongly worded opinion of the dissenting justices
correctly highlights the majority's misapplication of the law." Concord Monitor,
March 10, 2010.

22. Representatives of the state have refused to assure the Policyholders that the state

will take no action which will result in depriving the Policyholders of their rights as established

by the Supreme Court.

23. According to JUA Board minutes, Commissioner Sevigny has intervened in the

JUA's affairs and has purported to direct the JUA Board not to act on any request from the

Policyholders regarding distributions:

Mr. Vaccarino reported that on March 11, [2010] the Executive

Committee met with the Commissioner at the Insurance
Department at which time the Commissioner had advised that the
State of New Hampshire had engaged tax counsel to analyze and
consider the tax status of the JUA and that no independent action
should be taken by the Board concerning these tax issues or the
question of any possible distribution of any possible surplus until
the matter of tax status is clarified. In the interim, any inquiry or
demand made to the JUA regarding distributions should be
referred to the Attorney General.

Minutes, JUA Board of Directors, dated March 19, 2010 (attached as Exhibit D hereto).

24. Notably, the legislation which purported to authorize the transfer of the JUA

funds was premised on the following legislative finding: 'funds held in surplus by the [JUA] in

the Post-1985 Account are significantly in excess of the amount reasonably required to support

its obligations as determined by the insurance commissioner.'" Tuttle, 159 N.H. at 638 (quoting

House Bill 2).

25. That finding was, in turn, based on a March 2009 report of the Department of

Insurance which concluded that the JUA's surplus at the end of 2008 was estimated to be in the

range of $140 million to $145 million. That surplus, according to the Department of Insurance,

"significantly exceeds the amount of capital needed to support the [JUA]." Id. (quotation
12959761.4
7


omitted).

26. On May 29, 2009, the Petitioners wrote to the Board and requested that the Board

take action in accordance with its duties pursuant to the insurance contract and Ins. 1703.07(d):

[T]he Policyholders hereby demand that the JUA Board immediately

call a special meeting to vote on the following issues:

1. The Board shall expressly declare the amount of excess surplus

funds that it believes to exist at the time of the vote and declare it to
be "earnings" of the company as referenced in the JUA policies
subject to distribution to all Policyholders in proportion to the
respective premiums paid; or

2. Alternatively, the Board shall declare the amount of excess surplus

funds that it believes to exist at the time of the vote that shall be
distributed to all Policyholders pursuant to Ins 1703.07(d) in
proportion to the respective premiums paid; and

3. The Board shall authorize the Policyholders' retention of Nixon

Peabody LLP at the expense of the JUA to represent the interests of
all Policyholders with respect to such respective earnings and/or
distributions from the JUA's surplus and to take such legal or
equitable action necessary or appropriate to respond to the proposed
taking of funds from the JUA by the State of New Hampshire or
anyone purporting to act on its behalf.

See Letter of May 29, 2009 to Merwyn Bagan, M.D. et al., p. 2-3 (attached as Exhibit E hereto).
27. The JUA took no action in response to this demand.

28. By letter dated April 20, 2010, the Petitioners renewed demands on the JUA

Board, to meet for the purpose of addressing the following issues:

1. The process and procedure by which it will engage the IRS on the resolution
of any monies owed;

2. The amount of excess surplus funds that the Board believes to exist at the time
of the vote and to declare it to be "earnings" of the company as referenced in
the JUA policies and subject to distribution to all Policyholders in proportion
to the respective premiums paid upon satisfaction of any tax issues; or

3. Alternatively, the amount of excess surplus funds that the Board believes to
exist at the time of the vote that shall be distributed to all Policyholders

12959761.4
8
 pursuant to Ins 1703.07(d) in proportion to the respective premiums paid upon
satisfaction of any tax issues.

See Letter of April 20, 2010 to Michael F. Aylward, Esq. (attached as Exhibit F hereto).
29. The JUA Board took no action in response this renewed demand.

COUNT ONE
Accounting

30. The Petitioners repeat and reallege the foregoing allegations in full.

31. The JUA Board considers its obligations to Policyholders to be fiduciary in

nature. On April 7, 2009, the JUA Chairman wrote to Policyholders stating:

[T]he primary fiduciary obligation of the JUA Board is to operate

the company on a strong financial basis, providing the excellent
claims and underwriting services that our insureds have come to
expect over the years. We take great pride in our record in this
regard—a record I might add that has led to the surplus position
the company presently enjoys. I want to take this opportunity to
reassure you that the Board will not depart in any way from its
fiduciary responsibility.

See Letter from Merwyn Bagan, M.D., dated April 7, 2009 (attached as Exhibit G hereto)

(emphases added).

32. In Tuttle, the Superior Court (McGuire, J.) found that the duties the JUA owed to

Policyholders were fiduciary in nature. Specifically, the Court wrote

The Attorney General's office attempts to distinguish State

Retirement System v. Sununu [126 NH 104, 108 (1985)] mainly on
the basis that the retirement system was created by statute whereas
the JUA was established by rules promulgated by the [insurance]
commissioner and approved by the legislature. This is a distinction
without a difference. The commissioner's power to create the JUA
was given by statute. The resultant entity is similar to the
retirement system as discussed above. Moreover, that RSA
chapter 100-A specifically states that the trustees of the retirement
system have a fiduciary duty to members and beneficiaries, while
the rules establishing the JUA do not, is of no practical import.
The JUA has contractual and regulatory obligations, which have
the same effect.

12959761 4
9
See June 25, 2009 Order (attached as Exhibit H hereto) (emphasis added).
33. Despite demand, the JUA has not taken action to fulfill its duties to Policyholders

to determine the amount of excess surplus funds, declare earnings and provide dividend to the

Policyholders.

34. Indeed, the JUA disregarded its fiduciary and contractual obligations to

Policyholders and actually "cooperated" with the state to transfer funds under RSA 144:1. JUA

Chairman Bagan wrote to JUA policyholders: "[t]he Board has cooperated with the Insurance

Department, the Attorney General's Office and the staff of the Governor as they move forward

with their plan [to appropriate $110 million of the JUA surplus]." See April 7, 2009, Bagan
letter, attached hereto as Exhibit G.

35. The JUA has acknowledged that it is obligated to determine what distribution is

owed to Policyholders. On April 27, 2009, JUA Chairman Bagan wrote to petitioner Tuttle as

follows:

If the Governor is ultimately unsuccessful [in appropriating the

JUA suplus], the JUA Board will most likely be forced to follow
regulatory guidelines as regards any possible distribution or
dividend. Essentially, the distribution would have to be limited to
policy years where the underwriting results (as compared to losses)
were so successful that a return premium is justified. The first
step in all of this is to await the outcome of the Governor's request.
If the outcome indicates a discussion regarding distribution, rest
assured I would be pleased to have you present a position to the
Board.

See Letter of April 27, 2009 (attached as Exhibit I hereto).

36. Despite the fact that the Supreme Court stopped the unconstitutional taking of the

JUA surplus funds, the Board has not taken action to meet the fiduciary obligations owed to

Policyholders concerning return of premiums and surplus funds. Further, statements of both the

Insurance Commissioner and the Governor indicate their intent to disregard an express holding

12959761 4
10
of the New Hampshire Supreme Court.

37. In order to assess and protect their adjudicated interests in the JUA funds, it is

essential that the petitioners be provided an accounting which contains at least the following

information:

a. JUA financial statements for the period 1986 to 2010;

b. JUA reserves for claims for the period 1986 to 2010;

c. JUA excess surplus funds for the period 1986 to 2010;

d. Total premiums paid by Policyholders for each year from 1986 to 2010;

e. The amount of premiums paid by each JUA Policyholder for each year for
the period 1986 to 2010;

f. The percentage of total premium that each JUA Policyholder paid for each
year for the period 1986 to 2010; and

g. Total interest earnings on JUA funds for each year from 1986 to 2010.

12959761 4
11
 PRAYERS FOR RELIEF

WHEREFORE, the Petitioners respectfully request that this Court:

A. Issue Orders of Notice to the Respondent;

B. Following hearing, order the Respondent to provide an accounting on terms to be

ordered by this Court;

C. Enter an Order awarding the Petitioners their costs and fees, including reasonable

attorneys' fees, incurred in connection with this action; and

D. Grant such other and further relief as is just under the circumstances.

Respectfully submitted,

All Petitioners,

By their Attorneys,

NIXON PEABODY

Dated: May 20, 2010

Kevin M. Fitzgerald,
N.H. Bar No. 806
W. Scott O'Connell,'
.H. Bar No. 9070
Gordon J. MacDonald, Esquire
N.H. Bar No. 11011
900 Elm Street
Manchester, NH 03101
(603) 628-4000

12959761 4
12
EXHIBIT A
 The New Hampshire Medical Malpractice Joint Underwriting Association
POLICY DECLARATIONS
EORIviER POLICY NO.. NEW
NAMED INSURED AND ADDRESS (No., Street, City, State and Zip Code) Policy No,JUIllak
1/00ceurrence
OCIsims-Made
T
SPECIMEN
S M
U
R a
E z

B
K
0
K
E
R

VOUCY PF.RIOD TOTAL ADVANC.T. PREMIUM

Fmm: To: 12:01 A.M,, Standard Time at
the address of the Named Insured 5
The Named Insured is: 0 Partnership; 0 Joint Venture; 0 Corporation; q(0ther)
M individual;
The insurance afforded is only with respect to those Coverage Parts for which an X Is shown In the appropriate box.
ADVANCE
COVERAGE PARTS LIMITS OF LIABILITY (Thousands of Dollars) PREMIUMS
Bodily Each Occurrence Aggregate
Comprehensive General Liability- Occurrence q /Y yhtlYmitge 5
; $
$

Owner's, Landlords' and Tenants' Liability - 0 daddy Injury e

orNirrence Property Damage $

Contractual Liability-Po:immix 0 Bodily lhjury e Aggregate

Property Damage ' S $

Property Damage coverage is not included unless a limit of liability is shown

Premises Medical Payments-Occurren ce 0 $ EachAccident S

$
Personal Injury Liability-Occurrence o $ Aggregate
$ S

Hospital Professional Liability-Occurrence

y-Occurrenee q Each Incident Aggregate $
$ 5

Hospital Profbssional Liability-Claims-Made q Renoactive Date Each Medical 'Incident Aggregate $

$
Physicians, Surgeons & Dentists*
Each Medical Incident Aggregate
Professional liability-Orteurrenee RI
5 5 $

Physicians, Surgeons & Dentists* Retroactive Date Each Modica/ Incident Aggregate $
Professional Liebility-Claims-Made Cl $ S
Other Liability-Occurrences Each Medical Incident Aggregate
Describe: q S S S

Other Liability•Claims-Made Retroactive Data Each Medical Incident Aggregate

Describe: C) S S S

Endorsements made part of this policy at time of issue (identify by #) Endorsement's 1, 2, 3, 4, SUA-51 and JUA-50 $
Stabilization Reserve Fund Assessment at time of issue (per Inc 1702.071) S N/A
''this coverage part apri its w partnersiups, nurses, and either qualifying MAIM core professionals

UNDERWRITING
 N.H.M.M.J.U,A.
The New Hampshire Medical Malpractice Joint Underwriting Association

PHYSICIANS, SURGEONS AND DENTISTS

PROFESSIONAL LIABILITY INSURANCE COVERAGE PART - OCCURRENCE
(Applicable to Chiropractors, Nurses, Podiatrists, Technicians, and other quulilYing Individual Health Caro Professionals)

For attachment to Policy No. NII,1116 to complete said policy:

SCHEDULE
The insurance afforded is only with respect to such of the following Coverages as are indicated by specific premium charge or charges. The limit of the company's
liability against each such Coverage shall be as stated herein, subject to all the terms of this policy having reference herein.

Limits of Liability
Advance Premium Coverages Code Name ol' insured
(Thousands of Dollars)
$ S 1,000 each medical incident M. individual Coverage SPECIMEN
$
$ $ 3,000 aggregate
S
S N. Partnership Coverage
Coverage for x-ray therapy by;
S Total of coverage for additional interests in item (b), Additional Declarations.
Endorsements attached at issue (list form number, code and name):
Endt's # I, 2, 3, 4, JUA-51 and ,TUA-50

$ TOTAL ADVANCE PREMIUM

ADDITIONAL DECLARATIONS
(a) Under Coverage N, the insured is engaged in partnership with the following persons (state for each whether a physician, surgeon or dentist):

(b) The number of professions! employees employed (I) under Coverage M, by the Insured or (ii) under Coverage N, by the peruiership, as additional interest% (not
indiv"dual coverage) is as follows:
Number Code Profession Advance Premium
Physicians $
Surgeons
Dentists S
X-ray Therapy Technicians S
Laboratory Technicians S
Physician's Assistants 5
Pathology Assistant $
CNA $
Phlebotomist
TOTAL ADVANCE PREMIUM ADDED TO SCHEDULE ABOVE $ NO EMPLOYEES

The Insured is engaged in practice as a

sod is duly registered and licensed to practice his profession under the laws of all jurisdictions in which he or she practices.
The insured: (1) is not connected with any partnership other than that described in (a); (2) is not an owner or operator of a hospital, sanitarium or
c linic with bed and board facilities, (3) does not perform major surgery; (4) does not use x-ray apparatus for therapeutic treatment; (5) has no other
professional specialty; (6) is not employed by any person or organization, on salary or commission.
Exception, of any, to (I) (4)

(2) (5)

(3) (6)

JUA-20 (4/87) Page 1 of 3

 I. COVERAGE AGREEMENTS
The company will pay on behalf of the insured;
COVERAGE M — INDIVIDUAL PROFESSIONAL LIABILITY
All sums which the insured shell be legally obligated to pay as
damages because of injury to which this Insurance applies caused
by e medical incident which occurs during the policy period, arising
out of the practice of the insurers medical or dental profession.
COVERAGE N — PARTNERSHIP, ASSOCIATION OR CORPORATION
PROFESSIONAL UABLITY
All.sums which the insured shell become legally obligated to pay
as damages because of injury to which this insurance applies
caused by a medical incident, by any person for whose acts or
omissions the professional partnership, association or corporate
insured is loyalty responsible, which occurs during the policy
period.
The company shall have the right and duty to defend any suit against
the insured seeking damages because of such injury even if any
of the allegations of the suit are groundless, false or fraudulent.
The company may maim such investigation and settlement of any
claim or suit as It deems expedient. The company shall not be
obligated to pay any claim or judgment or to defend any suit after
the applicable limit of the company's liability has been exhausted
by payment of judgment or settlements.
EXCLUSIONS
This insurance does not apply
(a)to injury arising out of the performance by the insured of a
criminal act
(b) to injury for which the insured may be held liable as a
proprietor, hospital administrator, officer, stockholder or member
of the board of directors, trustees or governors of any hospital.
sanitarium, clinic with bed and board facilities, nursing home,
laboratory or other business enterprise;
(c)under COVERAGE M Individual Professional Liability —
to injury arising out of the rendering of or foamy to render profes-
sional services of any other person for whose acts or omissions
the insured may be held liable as a member, partner, officer,
director or stockholder of any professional partnership,
association or corporation;
(d)to bodily injury to any employee of the insured arising out
of end in the course of that person's employment by the insured:
(0) to any obligation for which the insured or any carrier acting
as insurer may be held liable under any workers' compensation,
unemployment compensation ur disability benefits law or under
any simillar law:
(f) to liability of where assumed by the insured under any contract
or agreement
JUA-20 (4/87)
II. PERSONS INSURED
Each of the following is an insured under this insurance to the extent
set forth below.
(a)under Coverage M — Individual Professional LIability — each
individual named In the Schedule as insured;
(b)under Coverage N Partnership, Association or Corporation
Professional Liability — the partnership, association or corpora-
lion described In the declarations and any member, partner,
officer, director or stockholder thereof with respect to acts. or
omissions of others, provided no such member, partner, officer,
director or stockholder of a partnership, association or corporation
shall be an insured under This paragraph (b) with respect to acts
or omissions in the furnishing of professional services by the
Insured or any person acting under the insured's personal
direction, control or supervision.
LIMITS OF LIABILITY
COVERAGE M — INDIVIDUAL PROFESSIONAL LIABILITY
The total liability of the company for all damages because of all
injury to which this insurance applies shall not exceed the limit
of liability stated in the Schedule as "aggregate ".
Subject to the above provision with respect to "aggregate", the
total liability of the company for all damages because of all Injury
arising out of any one medical incident shell not exceed the limit
of liability stated in the Schedule es applicable to "each medical
incident".
Such limits of liability shall apply separately to each insured.
COVERAGE N — PARTNERSHIP, ASSOCIATION DR CORPORATION
PROFESSIONAL LIABILITY
Regardless of the number of insureds under this insurance or the
number of claims made or suits brought, the company's liability
is limited as follows:
The total liability of the company for all damages because of all
injury to which this insurance applies shell not exceed the limit
of liability stated in the Schedule as "aggregate".
Subject to the above provision with respect to "aggregate", the
total liability of the company for all damages because of all injury
caused by any one medical incident shall not exceed the limit
of liability stated in the Schedule as applicable to "each medical
incident",
IV. POLICY TERRITORY
This insurance applies to damages for injury caused by a medical
incident anywhere in the world, provided the original suit for such
damages Is brought within the United States of America, its territo-
ries or possessions, Puerto Rico or Canada.
V. AD0M0NAL DEFINMONS
When used in reference to this insurance (including endorsements
forming a part of a policy):
"medical Madam" mesas say act or Minion:
Page 2 of 3
 (a) under Coverage M — Individual Prole:510nel Liability —
(1) in the furnishing of professional medical or dental services
by the insured, any employee of the insured, or any person acting
under the personal direction, control or supervision of the insured,
or (2) in the service by the insured as a member of a formal
accreditation, standards review or simHar professional board or
committee.
(b)under Coverage N — Partnership, Association or Corporation
Professional Liability — in the furnishing of professional medical
Of dental services by (1) any member, partner, officer, director,
stockholder or employee of the insured, or (2) any person acting
under the personal direction, control or supervision of the insured.
Any such act at omission, topther with ell related acts or
omissions in the furnishing of such services to any one person
shall be considered one medical Incident.
"suit" includes en arbitration proceeding to which the insured is
required to submit or to which the insured has submitted with
the company's consent.
VI. AMENDED CONDMONS
A. With reference to this insurance, the conditions are amended
as follows:
Condition 4 — INSURED'S DUTIES IN THE EVENT OF OCCUR-
RENCE, CLAIM OR SUIT is replaced by the following;
4. ASSISTANCE AND COOPERATION OF INSURED
The insured shall give written notice to the company as soon
as practicable of any claim made against the insured or of any
specific circumstances Invohring a particular person likely to
result in a claim. Tire notice shall identify the inured and
contain reasonably obtainable information with respect td the
time, place and circumstances of the injury including the names
end addresses of the injured and of available witnesses and
the extent of the type of claim anticipated. if a claim is made
or suit is brought against the Insured, the insured shall
immediately forward to the company frosty demand, notice,
summons or other process received by the insured or the
insured'a representative.
The insured and each of its employees shall cooperate with
the company and, upon the company's request assist in making
settlements, in the conduct of suits and in enforcing any right
of contribution or indemnity because of injury or damage with
respect to which insurance is afforded under this policy; and
the insured shall attend hearings end trials and assist in
securing and giving evidence and obtaining the attendance of
witnesses. The insured shall not, except at the inured's own
coat voluntarily melee any payment, assume any obligation or
incur any expense.
Condition 9 — ASSIGNMENT is amended to read as follows:
JUA-20 (4M)
9, ASSIGNMENT
The Interest hereunder of any insured is not assignable.
Under Coverage M — individual Professional liability — if the
insured shall die or be adjudged incompetent, this insurance
shall thereupon terminate for such person but shall sifter the
insureds legal representative as the insured with respect to
liability previously incurred and covered by this insurance.
Under Coverage N — Partnership, Association or Corporation
Professional Liability — if any member, partner, officer, director
or stockholder of the insured shell die or be adjudged incompe-
tent, this insurance shall thereupon terminate for such person
but such insurance as is afforded by this policy shell cover the
insureds legal representative as the insured with respect to
liability previously incurred end covered by this insurance.
B. Condition 2, 'inspection and Audit", end Condition 3, "Finer).
del Responsibility Laws" do not apply to this insurance.
VII. ADDMONAL CONOMONS
A.FIRST AID EXCLUSION
This insurance shell not apply to expenses incurred by the
insured for first aid at the time of an accident end the "Supple .
memory Payments" provision is amended accordingly.
B. LIMITATION OF COVERAGE UNDER AP OTHER LIABILITY
INSURANCE
Except as stated in this Part, this policy does not apply to injury
caused by any medical incident.
C. SOLE AGENT
The insured first named in Item I of the declarations shall act
on behalf of all insureds with respect to the giving notice of
cancellation, accepting any endorsement issued to form a pot
of this policy and receiving return premium, if any; and is
thorned with the responsibility for notifying the company of
any changes of members, partners, officers, directors, stock-
holders or employees or any other change which might affect
the insurance hereunder. In the event of cancenation of the
policy by the company, notice shall be sent to all named
insureds.
Page 3 of 3
 PART TIME PROFESSIONAL LIABILITY ENDORSEMENT

This endorsement effective SPECIMEN forms a part of

(12:01 A.M. standard time)

Policy Number: NITRIA Retroactive Date: N/A

Issued to; SPECIMEN

By: New Hampshire Medical Malpractice Joint Underwriting Association

It is understood that:

A. The Company offers a premium discount to Insureds who meet the following criteria:

1. Insured has an unrestricted license in New Hampshire.

2. Insured provides a maximum of 15 hours or less per week based on a 6 month

average involving direct patient care.

B. The Named Insured has completed a "Part Time Professional Liability Application"
to the Company which includes representation that the Named Insured meets the
criteria listed in A. above.

C. The Company has accepted the Named Insureds' representations as factual and has
granted the discount to the premium charged on this policy.

It is agreed that:

A. The completed application described above and attached is incorporated in and made part
of this policy,

B. A photographically reproduced copy of said application is as valid as the original.

C. The Company, in granting the discount, has relied on the validity of the representations
described in understanding B. above.

D. It is a condition of this policy, that omissions or misstatements in representations described

in understanding B. above could cause an otherwise valid claim to be denied.

All other terms and conditions of this policy remain unchanged,

Authorized Signature

WA 51
 ENDORSEMENT #1

This endorsement effective SPECIMEN forms a part of

(12:01 a.m. standard time)

Policy Number: NILIVA Retroactive Date: N/A

Issued to: SPECIMEN

By: The New Hampshire Medical Malpractice Joint Underwriting Association.

NHIVIMJUA

This policy shall not apply to any claim against

any insured (a) "to injury arising out of sexual
activity, sexual abuse, sexual misconduct, sexual
molestation or sexual harassment by the insured;
(b) or by any employee of the insured or any other person
for whom the insured may be legally liable."

All other terms and conditions of this policy remain unchanged.

Authorized Representative
 ENDORSEMENT #2

This endorsement effective SPECIMEN forms a part of

(12:01 a.m. standard time)

Policy Number: NHJUA Retroactive Date: N/A

Issued to: SPECIMEN

By: The New Hampshire Medical Malpractice Joint Underwriting Association.

NHIVIIVITUA
Insurance is only afforded for the practice of the medical specialization
listed on the declaration page, as disclosed in the policy application. If
the insured assumes responsibility beyond the generally accepted scope of his
or her specialization, which responsibility would have resulted in a change
in classification and/or an increase in premiums had the NHMMJUA been apprised
of its existence, no coverage will be provided for claims or suits arising out
of that responsibility unless notice of the new responsibility is provided to the
NHKMJUA within thirty (30) days that the new responsibility is assumed and
prior to the expiration of the policy.

The NHMMJTJA reserves the right to adjust the stated premium for this coverage
to the extent that this new responsibility increases or changes the insured risk.

All other terms and conditions of this policy remain unchanged.

Authorized Representative
 ENDORSEMENT #3

This endorsement effective SPECIMEN forms a part of

(12:01 a.m. standard time)

Policy Number: NHJUA Retroactive Date: N/A

Issued to: SPECIMEN

By: The New Hampshire Medical Malpractice Joint Underwriting Association.

NHIVIMAJA
It is agreed that such insurance as is afforded by this policy applies,
subject to the following provision:
Paragraph 2 of Condition 10 (Cancellation) is
replaced by the following:
If the policy is cancelled earned premium shall be
computed in accordance with the customary pro rata
table and procedure. Premium adjustment may be made
either at the time cancellation is effected or as soon as
practicable after cancellation becomes effective, but
payment or tender of unearned premium is not a
condition of cancellation.

All other terms and conditions of this policy remain unchanged.

Authorized Representative
 ENI)ORSEMENT #4

This endorsement effective SPECIMEN forms a part of

(12:01 a.m. standard time)

Policy Number: .NILIVA Retroactive Date: N/A

Issued to: SPECIMEN

By: The New Hampshire Medical Malpractice Joint Underwriting Association

NHMMJUA
in addition to the coverages otherwise afforded under this Policy, the Company agrees to reimburse legal fees
incurred by the Insured with respect to an Administrative Proceeding. The Company shall not be liable, however,
for any monetary award, judgment, fine or for any sanction that may be levied against the Insureds as a consequence
of an Administrative Proceeding.

Coverage under this Endorsement shall only extend to Administrative Proceedings that are first made against any
Insured during the Policy Period and reported to the Company in writing during the Policy Period or within the time
of any Extended Reporting Period that may be purchased by the Insured.

The Company's reimbursement obligation shall not exceed $25,000.00 per Administrative Proceeding for
reasonable fees, costs and expenses incurred in defending an Administrative Proceeding and/or $25,000.00 annual
aggregate for all Administrative Proceedings.

"Administrative Proceeding" shall mean any of the following:

Any investigation commenced by the New Hampshire Board of Medicine or any other state disciplinary board or
similar entity seeking to limit or revoke the lnsured's license to practice medicine in the State of New Hampshire.

Any proceedings commenced by a Hospital Peer Review committee concerning the insured's right to practice
medicine at said hospital.

Any proceedings commenced by a health maintenance organization, health insurer or managed health care provider
concerning the insured's certification with said organization.

"Administrative Proceeding" shall not include proceedings undertaken outside of New Hampshire, nor shall it
include actions for fraud or that are solely based upon criminal conduct of the Insured or tbr which coverage is
otherwise excluded under the terms of this policy.

Countersigned by
Authorized Representative
 POLICY MONSOONS PAY ONE

LIABILITY POLICY (Assessable and Participating)

NEW HAMPSHIRE MEDICAL MALPRACTICE JOINT UNDERWRITING ASSOCIATION

CONCORD
NEW HAMPSHIRE

pi FARR Nara
AK sodden* oecurrerwee Diemen THE INSURED IS REQUESTED
mat be ',pelted to the Conipeny TO READ THIS DOCUMENT,
or Na ewhouthed ovnbeentatIves, AND IF INCORRECT RETURN •
In acconlenc• 'Rh the Pettey IT, IMMEDIATELY FOR
CondIttone. ALTERATION.

r
 NEW HAMPSHIRE MEDICAL MALPRACTICE JOINT UNDERWRITING ASSOCIATION
WHEREVER THE WORD COMPANY APPEARS IN THIS POLICY SUBSTITUTE THE WORD ASSOCIATION
In consideration of the payment of the premium, In Wan upon the esteem* In, the defiantly* made a part hereof and sullied to an of the tenon of thll policy,
egress with the need Inland as follows:
SNPyeiriarooramsiO400 Ponownewored
The company will pay, in addition to the applicable limit of liability,
(a) all expenses inourrod by the company, all costs taxed *pint the Insured
in any suit defended by the company and all Interest on the entire amount of any
Judgment therein which accrues alter entry of the judgment and before the con•
piny has paid or tendered or deposited in court that part of the judgment which
does not exceed the limit of the company's liability therein;
fel premiums on appeal bonds required le any such suit, premiums on bonds to
release attachments in any such suit for en 'mount not in nesse of the applicable
d roll of li abi lit y of this policy, and the cost of ball bonds required of the Inland
.2040eakoeinl
When used in this policy (including endorsements forming a pert hereof);
"automobile means a land motor vehicle, trailer or semitrailer designed for
travel on public roads (including any machinery or aPpotatus attached thereto),
but does not include mobile equipment;
"bodily inurry" means bodily injury, sickness or divine sustained by any perm
which occurs during the policy period, Including death at any time resulting
therefrom;
"osUapse harard" includes "structural property damage" as defined herein and
property damage to any other properly al any tin* resulting therefrom, 'Structural
property damage" means the Go n na* of or structural 'miry to an y trund le; o r
structure due to 0' grading or land, excavating, borrowing, Oiling, back4illing,
tunnelling, pot drierng, cofferdam work or caisson work or (2) moving, shoring,
underpinning, raising or demolition of any building or structure or removal or re•
building of any structural support thereof The collapse hazard does not include
property damage Or arising our oi operations performed for the unwed a Inured by
independent contractors, al (Z) included within the com lend *o rations hazard
or the underground property damage hoard, or (3) for which Nobility Is assumed
by the insured under an thicklental connect;
"completed operations hoard" includes bodily Wary and property demote arising
out of operations or reliance upon a representation or warranty made at any OM
with res p ect thereto, but only If the bodily lolury or property damage arms after
such operations have been completed or abandoned and occurs away from premises
owned by or rented to the named insured. "Operations" incline materials. parts
or equipment furnished in connection therewith, Operations shall be deemed Calm•
larded at the earliest of the following limes;
III when all operations to be performed by or on behalf of the used intend under
the contract have been oompleted,
(2)when all operations to be performed by or on behalf of the named Insured at
the site of the operations have been completed, or
(3)when the portion of the work out of which the Injury or damage arises has
been put to its intended use by any person or organization Other than another
contractor or subcontractor engaged in performing operelloris for a principal
as a part of the same project.
Operations which may require further service or maintenance work, or correc-
tion, repair or replacement because of any defect or deficiency, but which are
otherwise complete, shall be deemed Com pleted.
The completed operations itazard does not include bony label or property
ep arising out of
(a) operations in connection with the transporlatthe of property, union the bodily
injury or property damage arises out of a condition in or on a vehicle created
by the loading or unloading thereof,
lb) the existence of tools, uninstalled equipment or abandoned or unused
materiels, or
lc) operations for which the classification stated in the policy or in the company's
manual specifies "including completed operations";
"elevator' means any hoisting Of towering device to conned floors or landings,
whether or Ant in service. and all appliances thereof including any car, plattorno
shaft, oorstway, slipover', runway, power equipment and machinery; but doe; not
include an automobile servicing hoist, or a hoist without a platform outside a build .
ng 1: without mechanical power or if not attached to building wails, or a hod or
material hoist used in alteration, construction or demolition operation*, or an
;mimeo conveyor used exclusively for carrying properly Of a dumbwaiter used
exclusively la carrying pro perly and having a compartment height not exceeding
four feet:
"explosion hazard" includes property damage arising out of blasting or or.
erosion. The explosion hazard don not include property Omega (1) arising out of
the eiplooion of air or steam vessels, piping under pressure, prime movers, ma-
chinery or power transmitting equipment, or (2) arising out of operations performed
for the noted insured by independent =Vonore, or (31 included within the
completed operations hazard or the underground property doom hazard, or
for which 'lability is assumed by the Inured under an Incidental contract;
because of eccld p rt en traffic law violation NNW out of the use of say vehicle
to which this policy applies, not to exceed $250 per boil bond, but the company
shall have no obligation to apply for or furnish any such bones;
id newton hectored by the hared for first aid to others at the Ilene of me
accident, for bodily Ming to which this policy *plies;
(d) reasonable expenses incurred by the lowed at the company's request In
assisting the company In the investigation or defense of any claim or salt, Including
Wan loss of sarninst not to exceed $25 Per day.
IacldeNtal warner means any written II) lease o1 premises, 12) 'Fitment
agreement, except In connection with construction or demolition operations on or
adjacent to a relined, (3) undertaking to indemnify a municipality required by
municipal ordinance, erupt in connection with work for the municlinntY, TB
sidetrack Ignement, or (S) elevator maintenance *or p iment
stesortd" means any person or organization qualifying as an Insured In the
"Persons Insured" provision of the applicable Insurance coverage. The insurance
afforded applies to each Insured *Nast whom claim 4 mode or suit Is
brought, except with respect to the limits of the company's
"monis equipment' means a land vehicle (including airy machinery or apparatus
attached thereto), whether or not sell•nropelled• Ill not subject to motor vehicle
registration, or (2) maintained for use exclusively on premises owned by or rented
to the noosed Insured, including the ways immediately adjoining, or (3) designed
for use principally off public roads, or 141 designed or maintained for the sole
purpose of Affording mobility to equipment of the following types forming se
integral pail of or permanently attached to such vehicle; power cranes, shovels,
loaders, diggers and drills; concrete mixers (other than the mix•in•transit tool;
graders, scrapers, rollers and other road construction or repair equipment; air,
compressors, pumps and generators, including spraying, welding and building
cleaning equipment; and geophysical exploration and well servicing equipment;
"Named inured" means the parson or organization named in item t. of the
declaretloec of this policy;
"named inarets product" means goods or products manufactured, sold,
handled or distributed by the named insured or by others trading under his name.
Including any container thereof ?other than a vehicle), but *wed Inured's
products' shall not include a vending machine or any property other than such
container, rented to or located for use of others but not sold;
"occurrence" means in accident including continuous or repeated exposure to
conditions, which results in bodily lajory or property damage neither expected nor
intended from the standpoint of the insorod;
"milky territory" means;
(V the United States of America, Its territories or possessions, or Canada, or
12) international well* or air space, provided the bodily Injury or property damage
does not occur lo the course of travel or transportation to or from any other
country, state or nation, or
anywhere to the worid, with respect to damages because of bodily inory or
property damage arising out of a product which was sold for use or consume-
tion Within the territory described In paragra p h (1) above, provided the original
suit for such damages is brought within such territory;
"products hazard" includes bodily lojary and property damage arising out of the
named insurers products or relianct upon a representation or warranty made at
any time with respect thereto, but only If the bodily injury or property tamp
occurs away km premises owned by or rented to the named insured and after
physical possession of such products has been roinouished to others;
"property damage" means Ut physical injury to or destruction of tangible
prope rty which occurs during the policy period, including the loss of use thereof
at any Ione resorting therefrom, or Qt (coo of use of tangible property which has
not been physically Injured or destroyed provided such loss of use it caused lay
an occurrence during the policy period;
"underground property damage hazard" Includes underg round property damage
as delined herein and properly damage to any other property at any time resulting
therefrom, "Underground properly damage' means property dama ge to wilco.
conduits, pipes, mains, sowers, tanks, tunnels. , any similar property, and any
apparatus Wr connection therewith, oeneath the surface or the ground or water,
oiused by and occurring durtng the use of mechanical equipment for the purpose
of owing land, paving, excaveting, drilling, borrowing, lilting, baciolilling or pile
driving, The ;renter:Rind property damage harard does not inctude property damage
(1) arising out of operations performed for the named insured by independent con-
tractors, or t2) included within ale completed opentions hazard, or (3) for which
hatiiray is assumed by the insured under an iecideetal contryt
 Insert Declarations Page (Part Two) and Coverage Port(s) here so that edge butts against fold of Contract.
ATTACH ENDORSEMENTS, IF ANY, TO TOP BACK OF DECLARATIONS.
e00440.4
1. Premium. An premiums for this policy shall be computed in accordance with
the company's rules, rates, rating plans, premiums and minimum premiums applicable
to the insurance afforded herein.
Premium designated in this policy as "advance premium" r3 a deposit Pentium
only which shell be credited to the amount of the earned premium due at the
eon of the policy poled. At the close of each period for pert thereof terminating
with the end of the policy period) designated in the declarations as the audit
period the earned premium Shin be computed for such period' and, upon notice
thereof to the earned Woad, shall become due cod payable. II the total owned
Premium for t he Polict Period is less than the premium previously paid, the COM ,
Pony _shall return to the named Insured the unearned portion paid by the named
Insured.
The named Mewed shall maintain' records of such inhumation as is necessary
for premium computation, and shell send copies of such records to the company
at the end of the policy period and it such times during the policy period u the
company may direct.
2. Inspection tad AM The company shall be permitted but not obligated to
inspect the named insured's property and operations el any time. Neither the cam•
pony's right to make inspections nor the mating thereof nor any report thereon
shall constitute an undertaking, on behalf of or for the benefit of the named
insured or others, to determine co warrant that such property or operations are
sate or healthful, or are in compliance with any law, rule or regulation.
The company may examine and audit the teamed insured's boas and records
at any time during the policy period and enlensiont thereof and within three years
after the lone termination of this policy, as far es they relate to the subfect
matter of this insurance.
3. financial Responsibility laws, When this policy is certified n proof of
financial responsibility for the future under the provisions of any motor vehicle
Unsocial responsibility law, such insurance an IS afforded by th i s Pact for bodily
injury liability or for property damage liability shell comply with the provision of
such law to the extent of the coverage and limits of liability required by such
The inured agrees to reimburse the company for any payment merle by the corn.
party which it would not have been obligated to make under the terms of this
policy except for the agreement contained in this paragraph.
Inctirod's Duties in at bud if Occerreernt, Claim er Solt.
tat In the event of an geturrence, twitter, notice toottining particulars sufficient
to identity the Metered and also reasonably obtema* information with
respect to the time, place and clecumtlences thereof, and the names and
addresses of the Injured and of available witnesseto sha g be thorn by or for
the insured to the company or any of its authorized agents as soon as
practicable.
lb) If claim Is made or soft 13 brought against the Insured, the insisted stall im-
mediately forward to the company every demand, notice, summons or other
process received by him or his representative.
(c) The Insured shall cooperate with the conMeny upon the company's
request, assist in melting settlements, in the conduct of suits and in enf orcing
any right of contribution or indemnity against any person or 'oltatIon who
may be liable to the Insured because of Injury or damage with respect to
which insurance is afforded under this pencil and the tinseled shall attend
hearings and trials and assist in securing and giving evidence and obtaining
the attendance of witnesses. The lame shall not, accept at his own cost,
voluntarily matte any payment, assume any obligation or incur any expense
other ono, for first aid to others at the time of accident.
6. Action Against Company. No action shall lie against tho company unless, as
a condition precedent thereto, there shall have been tub compliance with oil of
the terms of this policy, lot until the amount of the insured's obligation to pay shall
have been finally determined either by iudgrnent against the insured Wei actual
trial or by written agreement of the Insured, the claimant and the company.
Any person or organization or the tog& representative thereof whe has secured
such lodgment or written agreement shell thereafter he entitled to recover under
inis policy to the relent of the insurance afforded by this policy. No person or
Organization snail have any right under this polo, to tom the company as a party
to any action against the mitred to determine the insured's liability, nor Time Ms
company be impleaded try the imams or htS legal representative, Bartitivotcy or
insolvency of the inured or of the Ineured's estate shall not relieve the company
of any of its obligations hereunder.
6. Other Inswarnoe. The insurance afforded by this policy is primary insurance,
except when steed to apply in excess of or contingent upon the absence of other
Insurance. When this insurance is primary and the insured has other insurance
which is slated to be applicable to the loss on an excess or contingent basis, the
amount of the company's liability under this polity shall not be r educed by the
existence of such other insurance.
When both this Insurance and other Insurance apply to the loss on the same
basis, whether primary, excess or contingent; the company shell not be liable
under this policy for a greater proporliorl of the loss than that slated In the
applicable contribution provision below:
tat Contribetten by Equal Shires, If an of such other valid and collectible insur•
envie provides for contribution by equel shares, the company shall not be
liable fora greeter proportion of such lose than would be payable if rick
insurer contributes an equal share until the share of each Insurer equals
the lowest eppliceble limit of liability under any one policy or the full amount
of the loss is paid, and with respect to any amount of loss not so paid the
remaining insurers then continue to contribute equal shares of the remaining
amount of the loss until each such insurer has paid its limit in full or the full
amount of the loss is paid.
lb) CentrIbutioa by Lindh. if any of such other Insurance does not provide for
contribution by equal shorn, the tompaey shall not be liable for a greeter
proportion of such loss than the applicable limit of liability under this polity
IN suchlossbeams to the total applicable limit of liability of all valid and
collectible insurance against such loss.
7. Selbr:ptlent. In 14 event of any payme pt under this policy, the comp any
Shall be ubrogeted to all the Insured's rights of recovery therefor against any
person or organization and the leaned shall eletule and deliver instruments and
papers and do whatever else is necessary to secure such rights. The Insured shell
do nothing after loss to prejudice such rights.
8. Changes. Notice to any agent or knowledge possessed by any agent or by
any other person shall not effect a waiver or a change hi any part of this polity
Of estop the coMp from asserting any right under the terms of this policy) not
shall the terms of this policy be waived or changed. except by endorsement issued to
form a part of this policy, signed by a duly authorized representative of the company,
8. Assigmeroit Assignment of Interest under this policy shell not bind the
company until Its consent is endorsed hereonr if, however, the lamed Imamd shill
die, such insurance es is afforded by this policy shell a pp ly (1) to the sand
Intend', legal representative, as the named Inured, but only While acting within
the SW* of MS duties es AO, and (2) with respect to the property of the
netted insured, to the person having pror temporary custody thereof, as blend,
but only until the appointment end qualiftatien of the-legit representative.
10. Cancellation. This policy may be cancelled by the named Insured by surrender
thereof to the Gamper* or erre of its-authorized agents or by mailing to the company
written 'stifles stating when thereafter the cancellation shall be effective. This
policy may be cancelled by the company by mailing to the named insured at the
address sftvm in this potty, written notice stating when not less than ten days
thereafter such cancellation shall be effective. The mailing of motto as aforesaid
shall be sufficient proof of notice. The time of surrender or the effective data
and hour of cancellation stated le the notice shall become the end of the malty
period. Delivery of such written notice either by the aimed Insured or by the
company shall be equivalent to malting.
If the policy is temente, earned premium shalt be computed In accordance with the
customary pro rata table and procedure. Pftf114111 **foment may be made either at Ow time
cancellation is effected or as soon as practicable alter ciocenetiot becomes effective, but
payment or tender of unearned premium in not a condition al cancellation
11. Decimation. By acceptance of this policy, the named Insured agrees that
the statements In the declarations are his agreements and representations, that
this policy Is issued in reliance upon the truth of such representations end that
this polio/ embodies al/ agreements existing between himself end the company
or any of its agents relating to this insurence,
 12. Assemble Poky Provision. This policy has been nsued by the company under the Wow
Hampshire Medical Malpractice Mint Undenwifing Association Flan estoblithed pursuant to
the huthortty granted by FIShetimt.1 and by itin400•.1h, and is lobos( to the WonMoot at
the pas the Plan provides sod the earned Mewed meat (hal in the event an underwriting
dchtif exi sts at the end of any 'Mai year the Plan is is effect, the board M directors at the
company may mike a premium «mlintency 3ttettoftent against all policyholders dur i ng such
yew. and the named insured shell pay to the company the named inuned's Owl 01 the Me.
mom contingency Isststolfti based upon the poky ;sternum payment paid by (he named
insuretto the company with respect to that roar T h y Flan (other provides 'hat the company
le amen mem, the Company has nosed this poficy to be signed by its chairman but this policy shall ere be valid unless completed by the atlachnieet hereto of a detheetioss pop
designated as Peat Two and Coverage Pet(s) and countersigned on the llama detentions page by a duty eutinxized reesseirtetive of the money.
This endorsement modifies the provisions of the poky tele* to ALL AtifON011111 WSW WIEAAL 1111Oillt1 AND NE01011. MUM INSUILUICE 0110 MN CONPUNENSIVE
PERSONAL ANO FAAMEWSCtilefeENENSME PERSONAL INSANUINCE.
Nesciests$ ems", iiesiday eitelN440,4 efatliiaorbood. 4e.boad 19•404
It is agreed Mai
I. This policy does not apply!
A. Under any Liability Coverage, to edify Injury or property dump
(1) with respect to which an ramrod under this policy Is also an bawd
under a nuclear energy liability Micy Issued by Nuclear Energy Liability
!wince Association, Mutual ftrk Energy lffbiity Underwriters of
Nuclear lemma Association of Geode, or would be an insured under
any such policy but for its termination upon exhaustion of its limit of
l iabi lity; or
(21 resulting from the bousem properties of nuclear materiel and with
reseed to which (3) any person or organization Is required to maintain
firiecia protection pursuant to the Atomic Energy Act of 1954. or any
law amendatory thereof, or Mt the leered is, or had this policy not
been Issued would be, entitled to indemnity from the United States el
America, or any agency thereof, under any agreement entered into by
the United States of Ammo, or any agency thereof with any person
organization,
Under any Medical Payments Coverage, or under any SuopleMthtbrY Pay.
rents provision relating to first aid, to expenses incurred with respect to
bodily In resulting from the hatereire Preerties of Recite
end art ing out of the operation of a exam facility by any person or
organization.
C. Under any Liability bodily or prieerty dump resulting
from the Naurdee amaiew iaahrise,
(1)the eater materiel (a) is at any maw facility owned by, or spirited
or on Waif of, an Insured or (b) has been discharged or dispersed
therefrom;
(2)the Mbar ruled* is contained his spent feel or waste at any time
posse ssed, handled , used, processed, stored, transported or disposed
of byoron b ehalf o an lama or
131 the eddy Ittiorq or property damage arises out of the furnishing by an
Insured of services, meteriels, parts or equipment in connection with
the planning, construction, maintenance, operation or use of an nese
facility, but if such facility is located within the United States at
America, its territories or possessions or Canada, this est-fusion (3)
applies only to property damage to such nuclear fealty and any
property thereat.
NH .MIAJUA•2
shag an g el the poticy of any policyholder who fails to pay the prfolOrm contingency
essessiuM.
13. hrtidpatlrlt Paley henbane the named WRNS shell participate is the teem of the
company, to each extent and upon such conditioes as shah be determined by the board of
&atom of the tumefy in accordance with kw sad as made am/liable te this policy, pro-
vided the awed Maned shalt have complied with all Me terms of this policy with respect to
the payment of premium,
91?
NHMMJUA
6
11. As used kt Ms endorsees*:
"kumases properties". *lode radioactive, logic of explosive propediee
"eater material" means emu material. 100(181 MAW 111.111.1 or by-
Medea meterhill
"sewn vestsrlal", *motel moles eiaterier, and "byproduct material" have
ihe reaming given them in the Atomic Energy Act of 1954 or In any law
amendatory fleeter
"Sped firer means we fuel element Or fuel connonent Maid or liquid, which
bee wed er 'posedto radiation in e ease mete}
NI*" means any waste material (a) containing W-preeett material other
thin the tailing s or wastes produced by the extraction or concentration of
uranium or thorium from any ore processed primarily for its Vans =Odd
content, and (b) resulting from e operation by irl Pirlon Or artnnritinfl
of any gecko facilityincluded undo the first two paragraphs of the deft,
ninon of eucliar tic rncys
"nuclear fealty" means
(a) se sakes renter,
Oa any equipment or devica designed Of used for (1) worsting the Isotopes
of uranlam or plutonium, (2) Imacessing or utilizing sped fuel, (3)
handling, processing or packages were,
(4) any equipment or device used for the processing, fabricating or alloying
of special amke materiel st any
U time the total amount of such me
(trial in the custody of the insured at the premises where such equipment
Of device it located consists of or contains more than 25 grams of
plutonium or uranium 233 or any combination thereof, or more than 250
grams of uranium 235,
tall any structure, bee, excavation, premises or place prepared or used for
the storage or disposal of watts,
and Includes the site on which any of the foregoing Is located, aU operations
conducted on such site and as premises used for such oPerstionsi
"nuke reactor" MOS any apparatus designed or used to sustain nuclear
fission in a setf•supportkig chain reaction or to contain a caeca mess of
fissionable material;
"Meekly damage" includes all forms of radioactive contamination of property.
EXHIBIT B
 PHYSICIANS, SURGEONS & DENTISTS
133 Federal Street, 3 r° Floor Professional and General
Boston MA 02110 Liability Application
Phone 1-800-221-2503
Fax 1-617-723 -5155 Broker
New Business 0 Address
Renewal q Polley No: Phone No.

1. Name of Applicant

2. Office Address

3. Home Address email address:

4. Telephone No. 5. Social Security No.

6. Date of Birth Place of Birth U.S. Citizen? Ycs q No q
7. Medical School Degree Year
Served Internship at Year
red Residency at Year

If foreign medical school graduate are you certified by the Educational Council for Medical School Graduates?

Yes q Year No q

Have you participated in any continuing medical education program within the past five years? Yes q No q

If "yes", describe

8. Name the states in which you are registered and licensed to practice your profession: YOU MUST SUBMIT A COPY OF
YOUR LICENSE WITH THIS APPLICATION
State License No.
NH

9. Has your state license to practice medicine ever been refused, suspended, revoked or voluntarily surrendered?
Yes q No 0

If "yes", explain

10. Name county, state and national medical associations or societies in which you are a member in good standing.

11. Name hospitals at which you have staff membership or privileges. Give nature of privileges at each.

12. What is your present field of practice or specialty(ies)?

Sub-specialty(ies)?


13. Name specialty board certifications which you hold.

Year
Year

14. Do you perform (OD appropriate box)

q No Surgery No invasive or surgical procedures other than incision of boils and superficial abscesses or suturing of
skin or superficial fascia.

q Minor Surgery All other invasive and surgical procedures not constituting major surgery, assisting in major surgery on
your own patients, obstetrical procedures not constituting major surgery, and radiopaque dye injections.
Incision of boils and superficial abscesses or suturing of skin or superficial fascia are not considered minor
surgery for purposes of this application.
q Major Surgery Operations or supervising of operations in or upon any body cavity including but not limited to the
cranium, thorax, abdomen or pelvis or any other operation which because of the condition of the patient or
the length or circumstances of the operation presents a distinct hazard to life. For example removal of
tumors, open bone fractures, amputations, the removal of any gland or organ, plastic surgery, and any other
operation done using general anesthesia. Tonsillectomies, adenoidectomies, and cesarean sections shall be
considered major surgery.

15. Do you perform pr have supervisory responsibility for another performing one or more of the following procedures?
Yes No
a. Acupuncture – other than acupuncture anesthesia 0 q
b. Arteriography 0 0
c. Catheterization

q cardiac q other, specify q q
d. Circumcision q 0
e. Cryosurgery 0 0
f. Discogram 0 0
g. Gastroscopy, Colonoscopy, ERCP, Laparoscopy q q
h. Laser Therapy q q
i. Lymphangiography q q
j, Myelography,
k. Needle biopsy (other than liver, kidney or bone marrow) - specify.
I. Phlebography
m. Pneumoencephalography
n. Radiation Therapy
o. Radiopaque dye injections – IVP
p. Electroconvulsive Therapy (E.C.T.)
q. Sub-dural or sub-arachnoid puncture other than lumbar puncture for diagnostic purposes
r. Setting of fractures...If yes, specify: q open q closed reduction
s. Radioactive isotopes – over 10 miilicuries per dose q 0
1) Therapeutic 0
2) Diagnostic q q
t. Peritoneal or Hemodialysis q q
u. Vasectomy q q
I 6. Do you perform or have supervi,tory ropon,vbility for another performing one or more of the following procedures?
Yes No
a. Minor surgery (explain **) other than incision of boils and superfical abscesses,
Or suturing of skin and superficial fascia 0 0
b, Assisting in major* surgical procedures on your own patients 0 q
c. Assisting in major s surgical procedures on other than your own patients q q
d. D & C q q
e. Obstetrical procedures (normal delivery) not considered to be major surgery q q
Abortions o 0

g. Colon and Rectal Surgery 0 0

h. Ophthalmologic Surgery 0 0
i. Urologic Surgery 0 q
General Anesthesia administration including spinal or epidural (caudal) q
k. Cardiac Surgery O 0
1. General Surgery q 0
m. Laryngologic Surgery q q
n. Otologic Surgery q q
o. Rhinologic Surgery 0 q

P . Hand Surgery q q

9 . Head and Neck Surgery q q

r. Gynecologic Surgery q 0
s. Obstetric Surgery q 0
t. Plastic Surgery — Cosmetic q Reconstructive 0 q 0
u. Neurologic Surgery 0 q
v. Orthopedic Surgery q q
w, Thoracic Surgery o 0
x. Vascular Surgery o 0
*Tonsillectomies, adenoidectomies and caesarean sections are considered to be major surgical procedures.
** Explanation

17. Any other minor or major surgical procedures performed not listed above? Yes q No q
If "yes", give details.

18. Do you work in an emergency room or intensive care unit on other than your own patients? Yes q No 0

If "yes", give details.

If emergency rotation is a condition of privileges at your hospital, please describe.
19. Are you employed in any capacity by any person or organization on salary or commission? Yes q No q
If "yes", give details.

20. Are you in active military service? Yes q No q

21. Are you employed full time by the Federal Government (not active in U.S. military service)? Yes q No q
22. Nature of Practice:

Are you practicing as (Select One)

An employed physician – Employer
An individual

A solo corporation (MP-120-0) – Corporation Name:

A partnership – Partnership Name:

Partnership Liability Coverage (Coverage N 80999)

Physician Partners:

Name Specialty Insurer

A member of a Corporation – Corporation Name:

Corporation Liability Coverage (Coverage N 80999)

List all Physician Stockholders:

Name Specialty Insurer

23. PROFESSIONAL EMPLOYEES:

A doctor (or partnership or corporation) incurs a degree of legal responsibility for the actions of his (its) employees, It is
important that the appropriate changes be made for employees to reflect this additional exposure. The additional charge does not
contemplate that coverage will be provided to the employees, but only contemplates liability imparted to the employer because of
the actions of employees.
NOTE: DO NOT INCLUDE INDEPENDENT CONTRACTORS
Do you (or does your partnership or corporation) employ any of the following?

A. Employed Physicians and Surgeons or Dentists (80942) YES NO
Name Specialty
Insurer
Procedures
 13. Licensed physician assistant, surgeon assistant, technicians (x-ray, lab or other), nurses, or any other professional employee?
YES NO

NOTE: A physician or surgeon assistant is one who has completed an approved course of study leading to university
certification and who performs his/her duties under the direct supervision of a licensed physician or surgeon, assisting in the
clinical and/or research endeavors of the physician or surgeon.
Name Occupation License No.

C. To apply for individual coverage for professional employees, an application must be submitted for each employee.
NOTE: If your P rofess ional en112/o.Yeei_Orry their own individual professional JigblIl y. Pleftse..so batilA copy of that policv
or a certificate of lISkta1191.11 evidence of other covera ge with thilsonatedapillication.
24. Name of previous insurer and policy number
Type of Coverage q Claims-Made – indicate retroactive date of tail coverage
q Occurrence
25. Has any claim or suit for any alleged malpractice been brought against you in the past 10 years? Yes q No q
If "yes", a summary of each claim or suit must be submitted. If the matter involves an insurer other than the N,H.M.M.J.U.A., a
report from such insurer would be satisfactory.

26, Professional Liability Coverage Selection

q Occurrence q Claims-Made
Coverage Period: From To
Limits of Liability: $ each medical incident/S aggregate
NOTE: Maximum limits $1,000,000/3,000,000
27. General Liability Coverage is available, please ask your agent (submit General Liability ACORD application) or the company
underwriter for details.
28. DENTIST CLASSIFICATION:
Please indicate the character of your practice:
q General Dentistry
Maxillo-facial Surgery
q Oral Surgery
Endodontics
Orthodontics
q Pedodontics
q Oral Pathology
Periodontics
q Prosthodontics
El Other (describe)
Class I No Surgery – No Anesthesia (Code 80211)
Class II Minor Oral Surgery
(Includes Extractions) (Code 70215)
q Class III Use of General Anesthesia
Without Intravenous (Code 70216)
q Class IV Use of Intravenous
General Anesthesia (Code 80223)
q Class V Major Oral Surgery (Code 80210)
29. RELEASE OF INFORMATION:
A. Do you wish the JUA to release Certificates of Insurance upon receipt of proper authorization from you?
Yes No
Note: In the event of cancellation of coverage hereunder, the holder of any certificate as authorized by
you shall be notified ofsuch cancellation,
Please list those facilities that should be sent Certificates of Insurance at this time:

IMPORTANT: THIS APPLICATION AND WARRANTY MUST BE SIGNED BY THE APPLICANT.

I UNDERSTAND AND AGREE THAT ANY POLICY, BINDER OR OTHER AGREEMENT FOR THE INSURANCE HEREIN
APPLIED FOR WILL BE SUBJECT TO THE FOLLOWING PROVISIONS:
ASSESSABLE AND PARTICIPATING POLICY PROVISIONS
This policy has been issued by the NHMMJUA under the New Hampshire Medical Malpractice Joint Underwriting Association Plan
established pursuant to the Authority granted by RSA404-C:1 and by RSA400-A:15, and is subject to the provisions of the Plan. The
Plan provides, and the name insured agrees, that in the event an underwriting deficit exists at the end of any fiscal year the Plan is in
effect, the board of directors of the NHMMJUA may make a premium contingency assessment against all policyholders during such
year, and the named insured shall pay to the NHMMJUA the named insured's part of the premium contingency assessment based
upon the policy premium paid by the named insured to the NIIMMJUA with respect to that year. The assessment and/or surcharge
against all health care providers by the Association may not exceed 100% of each premium for the policy year in which the
assessment or surgcharge is made, as determined by Article VIII of the Plan of Operation and approved by the Commissioner,
provided that the payment of the assessment or surcharge may be applied over a period not to exceed three years in the event that it is
greater than $ 10,000. The Plan anther provides that the NHMMJUA shall cancel the policy of any policyholder who fails to pay the
premium contingency assessment. In addition, the named insured shall partipate in the earnings of the NHMMJUA, to such extent
and upon such conditions as shall be determined by the board of directors of the NHMMJUA in accordance with law and as made
applicable to this policy, provided the named insured shall have complied with all the terms of this policy with respect to the payment
of premium.
WARRANTY
THIS APPLICATION REQUESTS INFORMATION THAT THE ASSOCIATION WILL USE TO DETERMINE WHETHER A
POLICY WHICH WILL BE ISSUED AND WHICH WILL BE USED IN PREPARING A QUOTATION. THE APPLICANT
WARRANTS THAT THE INFORMATION PRESENTED IS CORRECT AND COMPLETE. IN THE EVENT A POLICY IS
ISSUED, THIS APPLICATION WILL BECOME A PART OF THE POLICY AND COVERAGE WILL BE CONTINGENT UPON
THE ACCURACY AND COMPLETENESS OF THE INFORMATION PROVIDED. NO COVERAGE WILL BE AFFORDED IF
THE INFORMATION IS FOUND TO BE MATERIALLY INCORRECT OR INCOMLETE, OR UNSIGNED BY THE
APPLICANT.

Signature of Applicant Date of Signature

AUTHORIZATION
I authorize release and exchange of information involving, but not limited to, claim matter from my professional society or
association, previous insurance carrier, hospital or clinic to the New Hampshire Medical Malpractice Joint Underwriting Association.

In the event coverage is granted, the Applicant agrees to authorize the N.H.M.M.J.U.A. to release a Certificate of Insurance upon the
proper request of any health care provider to which the Applicant has applied for or has been granted clinical privileges. Proper
request shall be a specific written authorization from the Applicant or a copy of the Applicant's applications to the health care
provider for privileges which contains the signed authorization allowing the health care provider to seek verification of the content of
such application.

Signature of Applicant Date of Signature

.11.1A-30 {12/90
EXHIBIT C
 Page 1

00000000000000

LexisNexis'
8 of II DOCUMENTS

Copyright 2009 Union Leader Corp.

All Rights Reserved
The Union Leader (Manchester, NH)

July 9, 2009 Thursday

SECTION: OPINION; Pg. 11

LENGTH: 654 words

HEADLINE: ANOTHER VIEW: The JUA surplus rightfully belongs to the people of NH

BODY:
As the insurance commissioner for the state of New Hampshire, I have been named in a lawsuit filed by three
health care providers about the state's proposed use of excess surplus from the New Hampshire Medical Malpractice
Joint Underwriting Association (JUA). There is considerable misinformation about the JUA and the recently enacted
law that would transfer $1 10 million from the JUA to the general fund to help support needed health care for New
Hampshire citizens who could not otherwise afford it.
In 1975, doctors could not get malpractice insurance and were closing their practices. New Hampshire consumers,
especially those in rural areas, were in danger of losing access to obstetricians and other needed health care providers.
My predecessor established the JUA in 1975, under an insurance law that gives the commissioner authority to step in
where there is a failing insurance market and create a state-sponsored plan to provide necessary coverage.
The JUA is governed by a board of directors appointed by me. Day-to-day operations of the JUA are handled by an
administrator I also appoint. The JUA operates not according to any corporate bylaws, but according to a plan enacted
by state regulations that I draft and a legislative committee approves. Because the JUA is considered by the IRS as "an
integral part of the state government," it does not pay federal taxes. The JUA also does not pay state taxes or other state
assessments that privately owned insurance companies pay.
Since 1986, when the current JUA plan was implemented, the JUA has done well financially and has accumulated a
large surplus. There have been no assessments on private insurance companies or any policyholders to build this sur-
plus. This surplus is essentially the "profit" the JUA earned since 1986 by careful management, wise investment and the
benefit of its tax-exempt status.
What has not been clearly explained to you is that the same state law that allows the insurance commissioner to
create the JUA prohibits the JUA from driving private insurance companies out of business. The Legislature did not
want the JUA to become a monopoly or to replace the private market. Premiums charged by the JUA must be compara-
ble to premiums charged by private insurance companies. State law prohibits me from approving a distribution that
could drive out the few remaining medical malpractice carriers in New Hampshire. The $110 million at issue is almost
12 times the amount of premiums paid by policyholders in 2008 and 52 percent of all premiums paid by policyholders
since 1986.
From my perspective, the Legislature was right to transfer the excess surplus from the JUA to the general fund.
First, I am confident that the remaining surplus funds left in the JUA are sufficient to keep the JUA financially sound.
Second, I take very seriously my obligations to uphold the state constitution and laws and to ensure that malpractice
insurance is available in New Hampshire. No private insurance company can compete with a tax-exempt JUA that dis-
 Page 2
ANOTHER VIEW: The JUA surplus rightfully belongs to the people of NH The Union Leader (Manchester, NH) July
9, 2009 Thursday

tributes $110 million to its policyholders. Third, JUA policyholders did not pay more for their coverage than they would
have paid if they purchased coverage from a private company. They received good coverage, and they received it at a
fair price. The law does not give them the right to a windfall.
Finally, the JUA excess surplus funds belong to us all. Over the past 20-plus years, we all paid more in taxes to
cover the taxes that the JUA was not required to pay. Our Legislature has determined that rather than benefit only those
doctors and providers who purchased JUA policies, this excess surplus should be used to support health care for those
who are less affluent, who have lost their jobs, who are disabled or who simply can't afford health care. The people of
New Hampshire established the JUA, and they deserve to benefit from it.
Roger Sevigny is New Hampshire's insurance commissioner.

LOAD-DATE: July 9, 2009 Thursday

EXHIBIT D
 New Hampshire
Medical Malpractice
Joint Underwriting Association

Board of Directors
March 19, 2010
53 South Fruit Street
Concord, NH

Board Members Present:

Merwyn Bagan, M.D., M.P. H. Chairman

David Jones
Michael Lee
Leslie MacLeod

Also Present:

Commissioner Sevigny
Donald Birdsong
Ann Conway
Alexander Feldvebel
Carrie Holland
Scott Monahan
James Richard
Gregory Staples (via teleconference)
James Vaccarino

The absence of Mary Bidgood-Wilson, Robert Solitro and Dr. Barry Stern was excused.

Dr. Bagan convened the Board at 1 PM.

Upon proper motion and seconding, the minutes of the meeting of December 18, 2009
were approved as drafted.

Mr. Monahan reviewed his report of claims activity for the year 2009. Noting that $3.5
MM was paid in indemnity – down from $8 MM in 2008, he reported on key closures
and a comparison of losses by specialty by quarter. Mr. Monahan's complete report is
appended to these minutes as Attachment "A".

The Board welcomed Mr. Staples and Mr. Richard to overview investment activity since
the December meeting. Their report of activity through February 2010 is appended to
these minutes as Attachment "B". Mr. Staples opined that economic recovery seems to
be taking hold and that the likelihood of further declines is low. Seeing slow but steady
economic growth, while heartening was offset to some extent by concerns over
continuing high unemployment statistics. Inflation appears to be a 'non-issue' but the
main cause for anxiety is the unparalleled growth in debt. The Board was gratified to see
the portfolio continuing to outperform the benchmark. Dr. Bagan inquired regarding the
effect on investment income of continuing to hold a substantial portion of the portfolio in
liquid assets (initiated in 2009 in anticipation of such funds being transferred to the
State). Mr. Richard advised that approximately $2.3 MM in lost income was somewhat
offset by the readiness to purchase new positions at unusually good prices as a result of
the high degree of liquidity. Cmmr. Sevigny advised the Board that he would determine
if and when the cash position of the portfolio could begin to be reduced. Finally, Mr.
Richard noted the current balance of the SRFT to be $8.2 MM.

In response to an inquiry from Ms. Bidgood-Wilson regarding the JUA investing in

`mission related' positions, Mr. Richard reported that no such investment would meet the
regulations governing JUA investments or the JUA investment guidelines themselves.
Apparently all such positions would be rated 'BBB' which is below the quality grade
required of NA investments.

Mr. Vaccarino reported that on March I I, the Executive Committee met with the
Commissioner at the Insurance Department at which time the Commissioner had advised
that the State of New Hampshire had engaged tax counsel to analyze and consider the tax
status of the JUA and that no independent action should be taken by the Board
concerning these tax issues or the question of any possible distribution of any possible
surplus until the matter of tax status is clarified. In the interim, any inquiry or demand
made to the JUA regarding distributions should be referred to the Attorney General.

The Board convened briefly in executive session.

Subsequent to the executive session, Mr. Vaccarino distributed the financial statements
for the year ending 2009. Such statements are appended to these minutes as Attachment

Mr. Birdsong had prepared and distributed a schedule of outstanding annuities by carrier
– such annuities relating to the "old JUA" and supported by the assets of the SRFT – with
an eye toward determining if any carriers were likely to fail to meet their obligations.
With regard to Executive Life of New York (ELNY), it was noted that liquidation is all
but certain and that exposure to the SRFT might be $5 Million. Mr. Birdsong will
continue to monitor the ELNY situation and report to the Board as indicated. Mr.
Birdsong's schedule is appended to these minutes as Attachment "D".

The Board scheduled June 25 th at 1 PM at the Insurance Department as the date, time and
place of its next regular meeting.

There being no further business, the Board adjourned at 3 PM.

EXHIBIT E
 NIXON PEABODYLLP
ATTORNEYS AT LAW

900 Elm Street, 14th Mot

Manchester, New Hampshire 03101-2031
1603) 628-4000
Fax: (603) 628-4041
Direct Dial: (603) 628-4087
Direct Fax: 1866) 947-1393
E-Mail: soconnennixonpeabody corn

May 29, 2009

BY E-MAIL, FACSIMILE AND FIRST CLASS MAIL

Merwyn Bagan, MD, Chairman

New Hampshire Medical Malpractice
Joint Underwriting Association
c/o The Hays Companies
133 Federal Street
Boston, MA 02110

RE: Excess Funds of New Hampshire Medical Malpractice Joint Underwriting Association

Dear Dr. Bagan:

This firm has been retained by LRGHealthcare, Deny Medical Center, and Georgia
Tuttle MD, on behalf of themselves and those similarly situated as current or past New
Hampshire Medical Malpractice Joint Underwriting Association ("JUA") policyholders (the
"Policyholders"). As you know, the New Hampshire legislature is considering a bill purporting
to authorize the taking of certain funds from the JUA for transfer to the general fund. Indeed, the
New Hampshire Attorney General has issued an opinion dated February 19, 2009, which
purports to sanction this taking (the "Opinion"). For the reasons detailed below, the Opinion is
erroneous, and any legislative effort to appropriate these funds violates both the rights and duties
owed the Policyholders by the JUA and its Board acting as fiduciaries. Moreover, the proposed
action is manifestly unconstitutional under provisions of both the New Hampshire and United
States Constitutions.

The Opinion states that "the JUA has accumulated a very large surplus from written
premiums and investment income" in the range of "between S 145 and S 160 million." The
monies that the State wants to take are largely from excess premiums paid by the Policyholders.
Policies at issue contemplated this circumstance and state the following:

The [Policyholder) shall participate in the earnings of the PUAJ, to such extent
and upon such conditions as shall be determined by the board of directors of the
[JUAJ in accordance with law and as made applicable to this policy, provided the
[policyholder) shall have complied with all of the terms of this policy with respect
to the payment of premium.

,15'1:142
Merwyn Bagan, MD
May 29, 2009
Page No. 2

This language makes clear that to the extent that any excess surplus exists at the JUA,
they constitute earnings that "shall" be distributed to the Policyholders. Nowhere in the Opinion
does the Attorney General acknowledge or account for the contractual right of Policyholders to
share in the earnings of the company. This omission is material and renders the conclusions
reached unsupportable. Indeed, for analogous reasons, recent statements by public officials to
the effect that "policyholders got what they paid for" are inaccurate. Indeed, the JUA has
previously declared earnings and returned the same to Policyholders. Furthermore, every
contract in New Hampshire is governed by the "covenant of good faith and fair dealing" which
requires that the JUA Board exercise its discretion to determine what portion of the surplus — if
any — constitutes earnings which belong to the Policyholders. Any action — or inaction — by
the JUA which serves to defeat this contractual obligation is a violation of the good faith and fair
dealing obligations imbedded in every policy the JUA has written.

Further, the Plan of the JUA, which is embodied in administrative rule Ins 1703.07(d),
provides for a distribution of excess funds to Policyholders. The Opinion gives short shrift to
this by simply concluding — without any factual or evidentiary support — that "such a
distribution would be problematic, because it would be tantamount to significantly reducing, or
even eliminating premiums for coverage, which would have a deleterious effect on the market as
a whole." In addition to being factually unfounded, it ignores that mutual insurance companies
regularly share with participating members earnings from favorable claims experience and
earned interest, which does not have any deleterious effect on the market. Indeed, it is the benefit
members get for good, efficient, and effective management.

Also, the Opinion fails to provide a cogent legal basis for ignoring the duly adopted
regulations that govern the JUA for the express purpose of dealing with any excess funds it
holds. See RSA 404-C:2 (IlXMandatory risk sharing plans shall "establish procedures that will
create minimum interference with the voluntary market"). 1 The drafters are presumed to have
taken account of market dynamics resulting from, in part, the effect of a return of excess
premiums when the regulations were adopted. In any event, we are aware of no legal authority
that provides that these unambiguous regulatory mandates can be ignored or disregarded. To
succeed, the Attorney General would need to challenge successfully the existing state regulations
as violative of the JUA enabling statute, which is ironic given her charge to enforce the laws of
the State. Indeed, the regulations do not constitute an a la carte menu from which the executive
can pick and chose to accomplish its desired end. Moreover, nowhere in the applicable polices,
enabling statute or regulations does it provide that the state gets any excess surplus funds.

the JUA Board owes Policyholders both contractual and fiduciary obligations with
regard to the excess surplus JUA funds. Indeed, the applicable policies, JUA enabling statute
and im plementin g regulations vests with the JUA Board—not the Governor, Insurance
Commissioner, Attorney General or Legislature—the exclusive res ponsibility of directing
what to do with any excess surplus. You are limited to two options: declare earnings or provide
a dividend to the Policyholders. In accordance with these non-delegable obligations, the

The Opinion incorrectly states that 'interference with the market is prohibited by law." Indeed, by their nature,
ktandatory Risk Sharing Plans affect markets and the enabling legislation permits "minimum interference."

NIXON PEABODY LIP

Merwyn Bagan, MD
May 29, 2009
Page No. 3

Policyholders hereby demand that the JIM Board immediately call a special meeting to vote on
the following issues:

I. The Board shall expressly declare the amount of excess surplus funds that it believes
to exist at the time of the vote and declare it to be "earnings" of the company as
referenced in the JUA policies subject to distribution to all Policyholders in
proportion to the respective premiums paid; or

2. Alternatively, the Board shall declare the amount of excess surplus funds that it
believes to exist at the time of the vote that shall be distributed to all Policyholders
pursuant to Ins 1703.07(d) in proportion to the respective premiums paid; and

3. The Board shall authorize the Policyholders' retention of Nixon Peabody LLP at the
expense of the JUA to represent the interests of all Policyholders with respect to such
respective earnings and/or distributions from the JUA's surplus and to take such legal
or equitable action necessary or appropriate to respond to the proposed taking of
funds from the JUA by the State of New Hampshire or anyone purporting to act on its
behalf.

According to Ins. 1703.04(h), the Chairman or three Board members may call for a special
meeting. The ten day notice requirement may be waived by a majority of the Board. On behalf
of the Policyholders, we call on you as Chairman—or three board members—to convene a
special meeting to occur as soon as practicable to take up the issues referenced above. Attached
for your use are three documents: (1) a Notice of Meeting Called by the Chairman; (2) a Notice
of Meeting Called by Three Directors; and (3) Consent to Waive 10 Day Notice Requirement.

As the fiduciary custodian of JUA funds, the Board and the JUA may not abdicate their
duty to assess and protect the rights and entitlements of Policyholders while the State attempts a
taking of these funds. The Board and the JUA have both contractual and fiduciary duties that
must be fulfilled in order to avoid potential personal liability to the Policyholders. We urge
immediate action. If you have not already done so, we respectfully suggest that you notify
applicable insurers of the JUA of this developing controversy so that you have appropriate legal
representation for Directors' and Officers' or Errors and Omissions claims should they be
asserted. We also note that Ins. 1703.14 provides for your indemnification including defense
costs under certain circumstances. Please consider this demand for action to be a "proceeding"
under this regulation.

Finally, please advise whether the JUA Board has retained counsel to assist it with this
matter. If not, we respectfully urge it to do so. We would also respectfully suggest that the
Board has an obligation to decline the services of the Attorney General with regard to this
matter. With due respect to the many talented attorneys who serve this State in that office, the
Attorney General has a material professional conflict of interest in providing counsel to the
Board concerning its independent contractual and fiduciary obligations given its Opinion to the
Governor and Insurance Commissioner on the propriety of taking these surplus funds. Also, the
regulations contemplate that Board members will be indemnified, including defense costs, which
dearly authorizes the retention of independent counsel. We are confident that the Attorney

NIXON PEABODY LLP

Merwyn Bagan, MD
May 29, 2009
Page No. 4

General will recognize the material limitation her office has with regard to representing different
and directly adverse constituencies to this issue.

While we are hopeful that the Board will take immediate action as outlined above to
protect the interests of the Policyholders, we reserve all rights and remedies that Policyholders
may have arising from this issue. If you have any questions about what I have written, please
call.

WSO:cln

Enclosures

cc: JUA Board Members

James M. Va.ccarino
Les MacLeod
Robert M. Solitro
David Jones
Peter McArdle
Mary Bidgood-Wilson
Barry Stern, MD

Courtesy Copies
The Honorable John Lynch, Governor
The Honorable Kelly Ayotte, New Hampshire Attorney General
The Honorable Louis D'Allesandro, Chair, Senate Committee on Finance
The Honorable Marjorie Smith, Chair House Committee on Finance
The Honorable Kathleen G. Sgambati, Chair, Senate Health and Human Services
Committee
Roger A. Sevigny, SCLA, Commissioner, New Hampshire Insurance Department
Alex K. Feldvebel Esq., Deputy Commissioner, New Hampshire Insurance Department

Kevin M. Fitzgerald, Esq.

NIXON PEABODY LLP

EXHIBIT F
 N I XON PEABODYup
ATTORNEYS AT LAW

900 Elm Street

Manchester, New Hampshire 03101-2031
(603) 628-4000
Fax: (603) 628-4040

Kevin M. Fitzgerald
Direct Dial: 603) 628-4016
E-Mail: kritzgeraldgnixonpeabody corn

April 20, 2010

By First Class Mail and Electronic Mail

Michael F. Aylward, Esquire

Morrison Mahoney LLP
250 Summer Street
Boston, MA 02210-1181

RE: NHMMJUA/Demand for Special Board of Directors Meeting

Dear Mike:

We have tried without success to obtain assurances from representatives of the State that
it will not attempt to defeat the policyholders' vested rights in the surplus funds of the JUA.
Indeed, because we have not obtained such assurances, we are of the belief that the State is
pursuing an agenda that is inconsistent with the vested rights of policyholders. While the
Supreme Court's opinion was unmistakable on the vested rights of policyholders, the State
appears to be in denial on this issue. The Supreme Court wrote:

We find that the language of the [JUA] policies and [Insurance]

regulations, taken together, confers upon policyholders a vested
contractual right in the treatment of any excess surplus. The policies
entitle the policyholders to "participate in the earnings of the [JUAJ" and
the incorporated regulations mandate the board's application of excess
funds in one or both of two specified ways: either against future
assessments or distribution to policyholders... Here the policyholders'
interest in any JUA excess surplus is vested and not contingent: either
they benefit from the surplus by its reinvestment for application against
future assessments; or they benefit from the surplus by receipt of a
dividend.

Based on this holding, the JUA Board is required to take timely action to preserve these vested
rights. Policyholders first made demand on the Board a year ago. The JUA failed to act.
Policyholders were forced to pursue through trial and appeal the protection of their constitutional

12968330 3

WWW.N1XONPEABODY. COM
rights in the surplus funds. During the process, the trial court made clear that the obligations the
JUA Board owed to policyholders were fiduciary in nature. The trial court wrote:

The Attorney General's office attempts to distinguish State Retirement System v.

Sununu [126 NH 104, 108 (1985)] mainly on the basis that the retirement system
was created by statute whereas the JUA was established by rules promulgated by
the [insurance] commissioner and approved by the legislature. This is a
distinction without a difference. The commissioner's power to create the JUA
was given by statute. The resultant entity is similar to the retirement system as
discussed above. Moreover, that RSA chapter 100-A specifically states that the
trustees of the retirement system have a fiduciary duty to members and
beneficiaries, while the rules establishing the JUA do not, is of no practical
import. The JUA has contractual and regulatory obligations, which have the
same effect. (emphasis added).

Indeed, The JUA Board itself has conceded that its obligations to policyholders are fiduciary in
nature. On April 7, 2009, the JUA Chairman wrote to policyholders stating:

[T]he primaryfiduciwy obligation of the JUA Board is to operate the

company on a strong financial basis, providing the excellent claims and
underwriting services that our insureds have come to expect over the
years. We take great pride in our record in this regard—a record I might
add that has led to the surplus position the company presently enjoys. I
want to take this opportunity to reassure you that the Board will not depart
in any way from its fiduciary responsibility.

In the Tuttle litigation, the policyholders were forced to take action to remedy significant
fiduciary failures of the JUA Board. The Board's current failure in the wake of Tuttle to (1) take
action to promptly address issues concerning the JUA's tax exempt status resulting from the
Supreme Court's order and (2) determine excess surplus funds owed to policyholders, are
additional breaches of its fiduciary duties. The JUA may not defer or delegate action on these
matters; neither may it rely on some confidential examination of the State to fulfill its
independent fiduciary obligations to policyholders. This is particularly true where the State has
pursued and continues to pursue an agenda which is inconsistent with the law and adverse to the
obligations owed to policyholders.

Accordingly, on behalf of our client policyholders, we hereby demand again that the JUA
Board immediately call a special meeting to decide the following issues:

1. The process and procedure by which it will engage the IRS to resolve issues
concerning its tax exempt status including related financial obligations, if any;

2. The amount of excess surplus funds that the Board believes to exist at the time
of the vote (irrespective of any portion of such funds implicated by item 1
above) and to declare it to be "earnings" of the company as referenced in the
JUA policies and subject to distribution to all Policyholders in proportion to

NIXON PEABODY LLP

 the respective premiums paid upon resolution of any tax issues; or

3. Alternatively, the amount of excess surplus funds that the Board believes to
exist at the time of the vote that shall be distributed to all Policyholders
pursuant to Ins 1703.07(d) in proportion to the respective premiums paid upon
resolution of any tax issues.

We have retained the services of PricewaterhouseCoopers to assist with analysis of the

tax issue. They have devised a strategy for resolving the tax issues on an expedited basis. We
would welcome the opportunity to have the Board meet with them to understand better the
available options for dealing with this issue.

We are prepared to proceed with litigation if the JUA Board refuses to take action. We
will once again bring the action against Board members individually because each member owes
these fiduciary duties. We would like to avoid proceeding in this fashion but ongoing failure to
take action is simply unacceptable and must be remedied immediately. Please let me hear from
you.

If you have any questions about what I have written, please call.

cerely yours,

K vin M. Fitzgerald
KMF:cln

NIXON PEABODY LLP

EXHIBIT G
 N. H. M. M. J. U. A.
NEW HAMPSHIRE MEDICAL MALPRACTICE JOINT UNDERWRITING ASSOCIATION
133 FEDERAL STREET, 3RD FLOOR, BOSTON, MA 02110-1703
TELEPHONE 617-723-7775
FACSIMILE 617-723-5155

SERVICE & ADMINISTRATION CLAIMS MANAGEMENT

800-221-2503 888-966-4582

Date: April 7, 2009

To: NHMMJUA Insureds, Agents and Brokers

From: Merwyn Bagan, M.D., M.P.H. Chairman, NHMMJUA Board of Directors

Re: NHMMJUA Capital Strength

I am certain you are cognizant of the recent publicity surrounding Governor Lynch's decision to
appropriate a portion of the surplus of the JUA in an effort to meet some of the shortfall in the state's
budget.

The Board has cooperated with the Insurance Department, the Attorney General's Office and the staff of
the Governor as they have moved forward with their plan. We have focused the greater part of our
efforts on assuring ourselves and those we insure that the JUA capital base remain strong to minimize
the potential of assessments in the future.

The Board's number one goal is to maintain a financially strong insurance provider in order to offer you
affordable coverage for the long term. We have urged all stakeholders to consider the importance of
financial stability. To date the Governor and the Insurance Commissioner have both acknowledged and
agreed that this factor — JUA capital security – is absolutely paramount to the continued reliability and
successful operation of the JUA. It is their publicly expressed intent to require the JUA to retain a
capital base, which is secure to meet the obligations of the company. This base will be well within the
standards set for such capital requirements as established by the insurance industry and the state of New
Hampshire for companies providing medical professional liability insurance.

The primary fiduciary obligation of the JUA Board is to operate the company on a strong financial basis,
providing the excellent claims and underwriting services that our insureds have come to expect over the
years. We take great pride in our record in this regard – a record I might add that has led to the surplus
position the company presently enjoys. I want to take this opportunity to reassure you that the Board
will not depart in any way from its fiduciary responsibility.

Please feel free to contact me at your convenience if there are any questions you have regarding my
comments.

Thank you for your continued support of the JUA as a reliable and secure insurer of professional
liability coverage in New Hampshire.
EXHIBIT H
 THE STATE OF NEW HAMPSHIRE
Belknap Superior Court
64 Court Street
Laconia, NH 03246
603 524-3570

NOTICE OF DECISION

KRISTIN M YASENKA ESQ

NIXON PEABODY LLP
900 ELM STREET
MANCHESTER NH 03101

09-E-0148 Georgia Tuttle MD, et al v. NH Medical Malpractice, et al

Enclosed please find a copy of the Court's Order dated 6/25/2009

relative to:

Order-Plf's Motion to Disqualify

Order-Def's Motion to Disqualify

06/25/2009 Dana Zucker
Clerk of Court

cc: KEVIN M FITZGERALD ESQUIRE

GORDON J. MACDONALD ESQ
W. SCOTT O'CONNELL ESQ
ANNE M EDWARDS, ESQ.

AOC Form SUCK% (Rev 09/27/2001)

 STATE OF NEW HAMPSHIRE

BELKNAP COUNTY SUPERIOR COURT
GEORGIA TUTTLE, M.D., ET AL

v.

NEW HAMPSHIRE MEDICAL MALPRACTICE JOINT UNDERWRITING

ASSOCIATION, ET AL
Docket No.: 09-E-148

ORDER ON PETITIONERS' MOTION TO DISQUALIFY (ATTORNEY

GENERAL FROM REPRESENTING JOINT UNDERWRITING
ASSOCIATION, ASSISTANT ATTORNEY GENERAL PERLOW
FROM REPRESENTING ANY PARTY)
Citing New Hampshire Rules of Professional Conduct 1.7 and 3.7,
Petitioners move to disqualify the Attorney General's Office from representing
respondent New Hampshire Medical Malpractice Joint Underwriting Association
("JUA") or its board members and to disqualify Assistant Attorney General Glenn
Perlow from representing any party in this matter. Petitioners have submitted
proposed findings of fact and rulings of law, all of which the Court has granted
and makes part of this order for the purpose of deciding the disqualification
issues only. For the reasons contained in the rulings on the petitioners' requests
and the narrative of this order, Petitioners' motion to disqualify the office of the
Attorney General from representing the JUA is GRANTED and the motion to
disqualify Assistant Attorney General Perlow is DENIED.
Petitioners, Georgia Tuttle, M.D., LRGHealthcare, and Derry Medical
Center, in their own right and on behalf of those similarly situated as current or
past policyholders in the New Hampshire Medical Malpractice Joint Underwriting

Association (the "JUA") move to disqualify the office of the Attorney General from

representing the JUA or its board members "because such representation is

necessarily in conflict with related representation and advice provided to the

Department of Insurance." Petitioners cite New Hampshire Rule of Professional

Conduct 1.7(a), which provides that "a lawyer shall not represent a client if the

representation involves a concurrent conflict of interest." A concurrent conflict of

interest occurs where "(1) the representation of one client will be directly adverse

to another client; or (2) there is a significant risk that the representation of one or

more clients will be materially limited by the lawyer's responsibilities to another

client...." N.H. Rules of Professional Conduct 1.7(a).

Petitioners argue that the JUA has contractual, regulatory, and fiduciary

duties to its policyholders which obviously conflict with the commissioner's

position that he will not approve a distribution of excess surplus to JUA

policyholders and the Insurance Department's concurrence with House Bill 2,

which would transfer the excess $110 million at issue in this case from the JUA

to the general fund for State use.

The Attorney General's office objects, arguing that "the JUA is not an

entity legally separate and distinct from New Hampshire State government, but

rather part of the government, created at the discretion of and supervised by the

Insurance Commissioner pursuant to the authority vested in him by statute (RSA

chapter 402-C). The JUA board members and the board administrator are

therefore officials of the State of New Hampshire Insurance Department." The

2
Court disagrees with the Attorney General's characterization of the JUA and its

board members and finds that the petitioners have met their burden of proof by

clear and convincing evidence that a conflict exists between the Department of

Insurance and the JUA preventing both of them from being represented by the

Attorney General's office.

The JUA is a quasi-public/private entity established in 1975 pursuant to

RSA chapter 404-C to provide access to professional liability insurance coverage

to medical providers in this state. It is a "mandatory risk sharing plan"

established by the commissioner upon a finding, after hearing, that medical

malpractice insurance was "not readily available in the voluntary market." RSA

404-C:1. The commissioner promulgated rules to govern the JUA. Id. Currently,

the JUA insures approximately 30 percent of medical care providers in this state

and competes with two private medical malpractice insurers which provide

coverage to the majority of medical care givers. (Representation by Attorney

General's office at June 23, 2009 hearing.)

The rules governing the JUA set forth the duties and obligations both of

the commissioner and the JUA board, its members and chairman. The board

has full authority over the operation of the JUA as follows:

a. "The commissioner shall grant the board the authority to exercise all

reasonable or necessary powers relating to the operation of the

association, " Ins 1703.04 (I);

3
 b. "The board shall retain such staff and appoint such committees as are

reasonable and appropriate to carry out the operations of the

association," Ins 1703.04(o);

c. The establishment of a bank account for use by the servicing carrier to

pay claims and related expenses, Ins 1703.05(e);

d. The levying of assessments on association members, Ins 1703.07(a);

e. The repayment to members of premiums written on association

business collected in excess of the amounts necessary to pay losses

and expenses, Ins 1703.07(c);

f. The management of a stabilization reserve fund, Ins 1703.09(a),

including the retention of staff "reasonable and appropriate" to carry

out the operations of the trust, Ins 1703.09(g);

g. The determination of coverage and forms, Ins 1703.11(a); and

h. Responsibility for financial management, budgets and reporting to the

association management, Ins 1703.12.

Additionally, the chairman of the JUA signs Part I, Terms and Conditions

of each medical malpractice policy. Part II, Endorsements, is co-signed by an

authorized representative of the JUA. (Verified Emergency Petition for

Extraordinary Writ of Mandamus and Writ of Prohibition, Exhibit 1.) The

commissioner takes no part in negotiating or executing these individual liability

contracts.

Given the quasi-private/public and voluntary nature of the JUA; the lack of

any State funding to implement or support the JUA; the fact that the Department

4
does not guarantee coverage to policyholders if the JUA were unable to do so;

and the broad powers and responsibilities of the JUA board, the Court concludes

that the JUA is a separate entity from the Insurance Department and is not part

of the executive branch of State government. Rather, it is akin to the New

Hampshire Retirement System which the New Hampshire Supreme Court has

held is "an independent entity rather than an executive department or agency."

State Retirement System v Sununu, 126 N.H. 104, 108 (1985). Although the

statute establishing the State retirement system, RSA chapter 100-A, is silent as
to the status of the retirement system, the Supreme Court cited three reasons for

concluding that it was an independent entity: (1) the "full power" given by statute
to the retirement system's board of trustees; (2) the fiduciary obligations that the

trustees owe the system's members and beneficiaries; and (3) the long-standing
practice by the retirement system of autonomy in its contractual dealing.

The Attorney General's office attempts to distinguish State Retirement

System mainly on the basis that the retirement system was created by statute

whereas the JUA was established by rules promulgated by the commissioner

and approved by the legislature. This is a distinction without a difference. The
commissioner's power to create the JUA was given by statute. The resultant
entity is similar to the retirement system as discussed above. Moreover, that

RSA chapter 100-A specifically states that the trustees of the retirement system
have a fiduciary duty to members and beneficiaries, while the rules establishing
the JUA do not, is of no practical import. The JUA has contractual and regulatory
obligations, which have the same effect. See, e.o., Ins. 1703.7(c) (JUA is

5
authorized to "repay ( ) to members ... premiums written on association

business collected in excess of the amounts necessary to pay losses and

expenses.").

That the JUA is an entity apart from the government is also supported by

the fact that the JUA has been represented by private counsel, not the Attorney

General's office, in cases where it has been a party or filed an amicus brief in the

New Hampshire Supreme Court. See Concord Hospital v New Hampshire

Medical Malpractice Joint Underwriting Association, 142 N.H. 59 (1997), Concord

Hospital v New Hampshire Medical Malpractice Joint Underwriting Association,

137 N.H. 680 (1993), and New Hampshire Insurance Guaranty Association v

Elliot Hospital, 154 N.H. 571 (2006).

For these reasons, the Court finds that the Attorney General's

simultaneous representation of both the JUA and the Insurance Department

creates a conflict under New Hampshire Rule of Professional Conduct 1.7(a).

Petitioners also seek to disqualify Attorney Perlow because, as the author

of the legal memorandum upon which the commissioner relied in supporting

House Bill 2, Perlow may be called as a witness. For the reasons stated in the

Attorney General's objection, the Court does not find that Attorney Perlow must

or should be disqualified. Moreover, the Court assumes that the reasoning

contained in the Perlow memo may well be the foundation upon which the

respondents will rely in opposing the petitioners. How Attorney Perlow arrived at

his conclusions will not be relevant to the Court in analyzing the correctness of

that position.

6
 For the above reasons, Petitioners' motion to disqualify the Attorney
General's office from representing the JUA is GRANTED and the motion to
disqualify Attorney Perlow is DENIED.

SO ORDERED.

Date
6/ar/o thleen A. McGuire
residing Justice

7
EXHIBIT I

MAY-20-2009 09:21 AM NHS 6032262 4 32 P. 0 6/1 4

85/06/2089 83:58 6834481879 lrnRIA TUTTLE PAGE 01

AfrianlY RAGAN, MAMPH,FACS

173 School Street
Concord, New Hampshire
03301.25611

27 April 2009

Georgia k Tuttle, MD
Skin Care Center
129 Mechanic St.
Lebanon, NH
03764
Dear Georgia:
Thank you for your letter of April 13, 2000. My response is delayed because I
was out of the country.

The decision of the Governor to appropriate a portion of the JUA surplus has
certainly forced the Board and the Insurance Department to consider a variety of
factors as regards the entire matter. If the Governor is ultimately successful the
question of dividends becomes moot as the amount of surplus remaining in the
JUA will be necessary to simply secure future obligations and thus no distribution
MU likely be considered.
If the Governor Is ultimately unsuccessful, the JUA Board win most likely be
forced to follow regulatory guidelines as regards any possible distribution or
dividend. Essentially the distribution would have to be limited to policy years
where the underwriting results (as compared to losses) were so successful that a
return premium is justified.
The first step In all of this Is to welt the outcome of the Governors request. If
the outcome Indicates a discussion regarding distribution, rest assured I would
be pleased to have you present a position to the Board.

Sincerely yours,

13ar*--
Merwyn Sego, MD,MPH,FACS
Chair, NHMMJUA

Telephone: 603-224-1036 Email: mbagan@camcast.net