The Primex Pooled Risk Management Program is Not Insurance and Statutory Governmental Immunity Remains Intact for Municipalities Covered by Primex

Charles Cole v. Town of Conway
New Hampshire Supreme Court Case No. 2022-0648
Friday, May 3, 2024

Charles Cole brought a personal injury suit against the Town of Conway for injuries he suffered when he tripped over broken and missing sidewalk bricks. Conway moved to dismiss the complaint arguing Cole had failed to allege with particularity how it had received written notice as required by RSA 231:92. That statute provides that a municipality cannot be held liable for personal injury due to construction, maintenance, or repair of public highways and sidewalks unless such injury or damage was caused by an insufficiency and the municipality had notice of the insufficiency. The trial court dismissed the complaint due to the lack of evidence Conway received prior notice of the broken and missing sidewalk bricks. The trial court also ruled Conway was entitled to statutory immunity because the risk management coverage afforded by Primex was not an insurance policy within the meaning of RSA 507-B:7-a.

Under RSA 507-B:7-a, when a municipality has in place a policy of liability insurance it cannot assert immunity for performance of governmental functions, such as provided under RSA 231:92. Conway is a member of Primex’s pooled risk management program and both the trial court and the Supreme Court concluded that the liability coverage afforded by Primex is not a policy of insurance as described in RSA 412 and hence RSA 507-B:7-a does not apply.

On the question of whether Conway had received prior notice of the sidewalk defects, evidence was offered at the trial court that a news article described statements by the Town Engineer at a select board meeting that seemingly suggested it was known “for years and years” the sidewalk pavers were improperly installed and were cracking and disintegrating. The Supreme Court agreed that if this were true this would satisfy the requirement under RSA 231:92, II. Cole was given leave to amend his complaint and to submit further evidence on remand whether Conway had prior notice of the sidewalk defect.


Additional Information: 

Practice Pointer: Municipal immunity arising out of highways and sidewalks under RSA 231:92 exists if insurance coverage is afforded by a pooled risk management program such as offered by Primex and there was no prior municipal knowledge of the highway or sidewalk defect.