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                 THE SUPREME COURT OF NEW HAMPSHIRE

                          ___________________________


Nos. 2014-0650
     2014-0736


                     APPEAL OF TOWN OF SALEM & a.
               (New Hampshire Bureau of Securities Regulation)

                            TOWN OF SALEM & a.

                                       v.

                  LOCAL GOVERNMENT CENTER, INC. & a.

                         Argued: September 10, 2015
                      Opinion Issued: February 18, 2016

      Bernstein, Shur, Sawyer & Nelson, P.A., of Manchester, filed no brief, for
petitioner New Hampshire Bureau of Securities Regulation.


      McLane, Graf, Raulerson & Middleton, P.A., of Manchester, filed no brief,
for respondents Local Government Center Property-Liability Trust, LLC and
New Hampshire Municipal Association Property-Liability Trust, Inc.


      Ramsdell Law Firm, PLLC, of Concord (Michael D. Ramsdell on the brief
and orally), for respondents Health Trust, Inc.; Local Government Center
Health Trust, LLC; and LGC-HT, LLC.
       Douglas, Leonard & Garvey, P.C., of Concord (Richard J. Lehmann on
the brief and orally), for the Towns of Salem, Temple, Auburn, Bennington,
Meredith, Northfield, Peterborough, and Plainfield.


       City Solicitor’s Office, of Concord (James W. Kennedy, city solicitor, and
Danielle L. Pacik, deputy city solicitor, on the brief), for plaintiff City of
Concord.


       Ramsdell Law Firm, PLLC, of Concord (Michael D. Ramsdell on the brief
and orally), for the defendants.

       HICKS, J. In the first of these consolidated appeals, the Towns of Salem,
Temple, Auburn, Bennington, Meredith, Northfield, Peterborough, and
Plainfield (the Towns) appeal an order of the presiding officer of the New
Hampshire Bureau of Securities Regulation (Bureau) denying their motion to
share in the distribution of approximately $17.1 million in excess earnings and
surplus by one of the respondents, Health Trust, Inc. (Health Trust), in an
administrative action brought by the Bureau against: Health Trust; Local
Government Center, Inc.; Local Government Center Real Estate, Inc.; Local
Government Center Health Trust, LLC; Local Government Center Property-
Liability Trust, LLC; New Hampshire Municipal Association Property-Liability
Trust, Inc. (Property Liability Trust); LGC-HT, LLC; and Local Government
Center Workers’ Compensation Trust, LLC (collectively, the administrative
respondents). See RSA 5-B:5, I(c) (2013).

       In the second appeal, the Towns and the City of Concord (collectively, the
plaintiffs) appeal an order of the Superior Court (McNamara, J.) granting the
motion to dismiss filed by, among others, defendants Local Government
Center, Inc.; New Hampshire Municipal Association Property-Liability Trust,
Inc.; New Hampshire Municipal Association, LLC; Health Trust, Inc.; LGC-HT,
LLC; LGC-PLT, LLC; Local Government Center Healthtrust, Inc.; Local
Government Center Property-Liability Trust, LLC; and Local Government
Center Real Estate, Inc. (collectively, the civil action defendants). We
consolidated these related civil and administrative cases on appeal. For ease of
reference, we will, where applicable, collectively refer to the administrative
respondents and the civil action defendants as LGC. We affirm in part, vacate
in part, and remand.


 The motion to dismiss noted that it was also submitted on behalf of Local Government Center
Health Trust, LLC, which, although not named in the case caption, was identified as a party
defendant in the plaintiffs’ complaint.


                                               2
       The following facts were found by the trial court or the presiding officer,
were recited by us in the related case of Appeal of Local Government Center,
165 N.H. 790 (2014), or appear in the record before us. The first appeal,
challenging the administrative order, involves subsequent proceedings in the
matter before us in Appeal of Local Government Center. The identities of, and
the relationships between and among, the respondents in that appeal, as well
as the factual and procedural background of the administrative action against
them, are described in Appeal of Local Government Center and repeated here
only as necessary. Generally, those respondents are or have been involved in
the operation of pooled risk management programs pursuant to RSA chapter
5-B. See Appeal of Local Gov’t Ctr., 165 N.H. at 794-96; RSA ch. 5-B (2013 &
Supp. 2015). The superior court action from which the second appeal arises
named three additional defendants — New Hampshire Municipal Association,
LLC; LGC-PLT, LLC; and Local Government Center Healthtrust, Inc. — alleging
that they, along with the other defendants, “are companies and corporations
offering products and services governed by RSA 5-B.” The plaintiffs are
municipalities that were members of pooled risk management programs run by
several of the defendants.

       In 2011, the secretary of state commenced an adjudicative proceeding
prompted by a staff petition filed by the Bureau alleging that the administrative
respondents had violated RSA chapters 5-B and 421-B. See Appeal of Local
Gov’t Ctr., 165 N.H. at 797. The presiding officer issued an order on August
16, 2012 (the August 16 Order) ruling that the administrative respondents had
violated several provisions of RSA chapter 5-B, including RSA 5-B:5, I(c), which
provides, in pertinent part:

      I. Each pooled risk management program . . . shall:

         ....

         (c) Return all earnings and surplus in excess of any amounts
      required for administration, claims, reserves, and purchase of
      excess insurance to the participating political subdivisions.

See id. at 798. The August 16 Order required that Health Trust and Property
Liability Trust return excess funds of $33.2 million and $3.1 million,
respectively, to those political subdivisions that were members of those
programs on August 16, 2012. The August 16 Order also directed the Bureau
and the administrative respondents to enter into an “agreed-upon plan” to
distribute excess funds to members that had participated in the program at
any time after June 10, 2010; however, if those parties failed to reach an
agreement, the order required distribution only to Health Trust’s and Property
Liability Trust’s current members. The parties failed to reach agreement, and
the excess funds were ordered to be distributed to current members.



                                        3
       The administrative respondents appealed the August 16 Order to this
court. See Appeal of Local Gov’t Ctr., 165 N.H. at 790, 793-94. We affirmed in
part, vacated portions of the order not relevant here, and remanded for further
proceedings. See id. at 809, 810, 814. Thereafter, the Bureau filed a motion
for entry of default order against the administrative respondents alleging
noncompliance with the August 16 Order. The issues related to that motion
were resolved by a consent decree incorporated into the presiding officer’s
order. During that proceeding, the Towns were permitted to intervene in order
to be heard on their proposal to participate, as former members of Health
Trust, in the further distribution of approximately $17.1 million in excess
funds. Their motion proposing such a distribution was denied, and the Towns
now appeal.

      Meanwhile, the plaintiffs filed suit against the civil action defendants in
superior court. Their amended complaint alleged that they had been members
of pooled risk management programs run by the civil action defendants at
various times, but were no longer members on August 16, 2012. Therefore,
they did not participate in the distribution of excess funds. They alleged:

             As a result of the manner by which payment was made
      under the administrative order, the plaintiffs hereby request the
      Court to award money damages pursuant to common law for their
      recovery. . . . [S]ince no monies have yet flowed back from LGC to
      these nine plaintiff communities, they are now forced to seek
      justice pursuant to their common law rights, wholly separate and
      apart from any administrative action pursued by the Secretary of
      State.

       The plaintiffs’ amended complaint pleaded, among other things, claims
for breach of contract and implied-in-fact contract, and breach of fiduciary
duty. The civil action defendants filed a motion to dismiss, which the trial
court granted. The trial court concluded that: (1) the remedies for overcharges
afforded by RSA 5-B:4-a “are intended to be exclusive in nature”; and (2) even if
the plaintiffs have a contractual right to the payment of excess funds, “this
action may not proceed because LGC has complied with a final administrative
order . . . to make a distribution of the funds Plaintiffs seek.” The plaintiffs
now appeal.

       We first review the trial court’s dismissal of the plaintiffs’ civil action. “In
reviewing the trial court’s grant of a motion to dismiss, our standard of review
is whether the allegations in the [plaintiffs’] pleadings are reasonably
susceptible of a construction that would permit recovery.” In re Estate of Mills,
167 N.H. 125, 127 (2014). “We assume that the facts set forth in the
[plaintiffs’] pleadings are true[,] . . . construe all reasonable inferences in the
light most favorable to [them], . . . [and] then engage in a threshold inquiry that
tests the facts in the [complaint] against the applicable law.” Id. “[W]e will


                                          4
uphold the granting of the motion to dismiss if the facts pled do not constitute
a basis for legal relief.” Estate of Ireland v. Worcester Ins. Co., 149 N.H. 656,
658 (2003).

       The plaintiffs argue that the trial court erred in: (1) construing RSA
5-B:4-a as abrogating their common law claims; and (2) ruling that LGC’s
compliance with the August 16 Order immunizes it from the plaintiffs’ common
law claims. We first address the plaintiffs’ contention that the trial court erred
in finding “that RSA 5-B:4-a ‘vests exclusive jurisdiction relating to overcharges
in the Secretary of State,’” and provides exclusive remedies therefor. Resolving
this issue requires us to engage in statutory interpretation.

      Statutory interpretation is a question of law, which we review de
      novo. In matters of statutory interpretation, we are the final
      arbiter of the intent of the legislature as expressed in the words of
      the statute considered as a whole. We first look to the language of
      the statute itself, and, if possible, construe that language
      according to its plain and ordinary meaning. We interpret
      legislative intent from the statute as written and will not consider
      what the legislature might have said or add language that the
      legislature did not see fit to include.

Appeal of Local Gov’t Ctr., 165 N.H. at 804 (citations omitted).

      The statute provides, in relevant part:

          I. Notwithstanding any other provision of law, the secretary of
      state shall have exclusive authority and jurisdiction:

          (a) To bring administrative actions to enforce this chapter.

         (b) To investigate and impose penalties for violations of this
        chapter, including but not limited to:

            (1) Fines.

            (2) Rescission, restitution, or disgorgement.

RSA 5-B:4-a (Supp. 2015).

       The plaintiffs argue that “[t]he statute merely refers to the Secretary’s
exclusive right to bring administrative actions, investigate, and impose
penalties for violations.” They then contend that the trial court’s interpretation
fails to account for the emphasized terms, which “act as limits on the
exclusivity of the secretary of state’s authority and jurisdiction.” “At no point
in the statute,” the plaintiffs argue, “does the text express that the Secretary of


                                         5
State’s exclusive administrative power abrogates the right of individuals or
corporations to bring common law or statutory actions in a court of law,
outside of an administrative setting.” In support of this argument, they rely
upon the doctrine that this court “will not construe a statute as abrogating the
common law unless the statute clearly expresses such an intention.” Case v.
St. Mary’s Bank, 164 N.H. 649, 655 (2013) (quotation omitted).

       The plain language of RSA 5-B:4-a grants the secretary of state
“exclusive authority and jurisdiction” to enforce RSA chapter 5-B and to
address violation of its provisions by means including “[r]escission, restitution,
or disgorgement.” RSA 5-B:4-a. We conclude that this language clearly
expresses the intention to supplant any common law claim within that realm
and provide instead an administrative enforcement mechanism with the right
of appeal to this court. See RSA 5-B:4-a, VIII. To determine whether the
plaintiffs’ claims fall within that realm, we examine their amended complaint.

        Count I in the plaintiffs’ complaint alleged that “[t]he plaintiffs were in a
contractual relationship with the LGC defendants, due both to the participation
and membership agreements between the parties, as well as the implied-in-fact
contract by operation of the governing statute, RSA chapter 5-B” (emphasis
added), and that the defendants breached those contracts by “failing to return
surplus funds on an annual basis.” Count II alleged that the defendants, as
trustees of Property Liability Trust and Health Trust, stood in a fiduciary
relationship with the plaintiffs and that they breached their fiduciary duties by:
(1) “failing to return to the plaintiffs, the amounts of surplus and earnings not
needed for administration, claims, reserves, and purchase of excess insurance,
in violation of RSA 5-B:5” (emphasis added); and (2) by failing to return surplus
funds during the administrative proceedings against them. The claims alleging
an implied-in-fact contract and a violation of RSA 5-B:5 (emphasized above)
are, by their terms, attempts to enforce the statute, and thus plainly fall within
the secretary’s exclusive jurisdiction. The plaintiffs did not adequately address
in their brief the second alleged breach of fiduciary duty claim — failure to
return surplus funds during the administrative proceedings — and therefore
we decline to consider it. See In re James N., 157 N.H. 690, 693 (2008). What
remains is the claim for breach of the participation and membership
agreements.

       We hold that a common law contractual claim for the return of surplus
funds as alleged by the plaintiffs is inextricably entwined with RSA chapter 5-B
and cannot exist alongside the administrative mechanism created in that
chapter. Were we to hold otherwise, parties could create an end-run around
the legislative grant of exclusive enforcement jurisdiction by incorporating
statutory provisions within their contracts and then privately enforcing such
provisions through breach of contract actions in court. Accordingly, we
conclude that the plaintiffs’ contract claim falls within the ambit of the



                                         6
secretary of state’s exclusive jurisdiction and is remediable solely through RSA
chapter 5-B.

      The plaintiffs nevertheless argue that “[t]he RSA chapter 5-B statutory
scheme clearly anticipates that risk pools created pursuant to that statutory
scheme may be sued by private parties.” They cite RSA 5-B:6, II, which
provides that “[a]ny such program operating under this chapter, whether or not
a body corporate, may sue or be sued; make contracts; hold and dispose of real
property; and borrow money, contract debts, and pledge assets in its name.”
RSA 5-B:6, II (2013).

      Our holding above is not inconsistent with this provision. RSA chapter
5-B contemplates that pooled risk management programs may make — and be
sued upon — all manner of private contracts unrelated to the matters governed
by that chapter. Such programs could, for instance, contract for goods and
services such as rental space or office supplies, and nothing herein holds that
breaches of those agreements could not be remedied through private lawsuits.

       The plaintiffs also assert that “[g]overnment regulation and common law
causes of action coexist in a wide range of contexts.” They cite a single
example: that “the power of the government to order a criminal defendant to
pay restitution pursuant to RSA 651:61-a et seq. . . . does not foreclose the
right of crime victims to seek compensation through the civil justice system.”
Unlike the statutory scheme here, which grants “exclusive authority and
jurisdiction” to the secretary of state, RSA 5-B:4-a, RSA 651:65 explicitly
reserves the right of crime victims to seek compensation via civil action. See
RSA 651:65 (2007) (stating, in part, that “[t]his subdivision does not bar,
suspend, or otherwise affect any right or liability for damages, penalty,
forfeiture or other remedy authorized by law to be recovered or enforced in a
civil action”). We need not search for other contexts in which government
regulation and common law causes of action may coexist as our task is to
determine whether the particular causes of action alleged in this case are
foreclosed by the legislature’s grant of exclusive jurisdiction to the secretary of
state in the particular statute at issue here — RSA 5-B:4-a. We hold that they
are.

       The plaintiffs also cite legislative history to support their interpretation of
RSA 5-B:4-a. Having found the statute’s plain language unambiguous,
however, we will not search further for its meaning. See JP Morgan Chase
Bank v. Grimes, 167 N.H. 536, 537 (2015) (“If the language of a statute is plain
and unambiguous, we need not look beyond it for further indication of
legislative intent.”). Because we uphold the trial court’s ruling that RSA
5-B:4-a provides the exclusive remedy for the plaintiffs’ claims, we also need
not address the plaintiffs’ challenge to the court’s alternative rulings based
upon LGC’s compliance with an administrative order.



                                          7
       We now turn to the Towns’ appeal from the presiding officer’s denial of
their request to participate in the distribution of excess funds. Our standard of
review is set forth in RSA 541:13. See RSA 5-b:4-a, VIII (providing that
“[d]ecisions of the secretary of state may be appealed to the supreme court
pursuant to RSA 541”). Accordingly, we will not set aside or vacate the
presiding officer’s decision “except for errors of law, unless [we are] satisfied, by
a clear preponderance of the evidence before [us], that such order is unjust or
unreasonable.” RSA 541:13 (2007). “The presiding officer’s findings of fact are
deemed prima facie lawful and reasonable.” Appeal of Local Gov’t Ctr., 165
N.H. at 803.

      The plaintiffs first argue that the presiding officer’s decision is unlawful
because it is contrary to RSA 5-B:5, I. The presiding officer found “little
foundation in law” for the plaintiffs’ claim to a share of surplus funds. Noting
that the August 16 Order directed that the funds be returned to members
consistent with RSA 5-B:5, I(c), the presiding officer then interpreted that
provision as follows:

             The “Pooled Risk Management Program” statute does not
      make provision for any past or former member of a pooled risk
      management program. RSA 5-B: 5, I(c) provides only for returns to
      “participating political subdivisions,” not any past or former
      participating political subdivisions. Applying rules of statutory
      construction considering the statute as a whole and assigning a
      word’s ordinary meaning in interpreting the statute, the more
      reasonable interpretation is that the word “participating” is a
      present [participle] attached to its subject, “political subdivisions.”
      A participle, i.e. a verb used as an adjective, in this instance
      indicates . . . tense. That tense is the present tense.

       The plaintiffs argue that “[e]ven if the term ‘participating members’ is
interpreted to mean only currently participating members, the plaintiffs still
have a right to the excess compensation that was withheld from them while
they were ‘currently participating members.’” This argument points out the
error in the presiding officer’s reasoning. RSA 5-B:5, I(c) is the provision the
LGC defendants violated; it does not circumscribe the remedy. RSA 5-B:4-a
authorizes the secretary of state to impose penalties for violations of the
statute’s provisions — here violation of RSA 5-B:5, I(c) — by means including
“[r]escission, restitution, or disgorgement.” RSA 5-B:4-a, I(b)(2). The August
16 Order states that “[t]o the extent that this order requires the return of funds
or property in the alternative, this order requires compliance with these
provisions as restitution or disgorgement pursuant to RSA 5-B:4-a, VII.”

      Either of the remedies purportedly used could involve repayment of the
wrongfully held funds to the parties from whom the defendants obtained those
funds. See, e.g., Pools by Murphy v. Dept. of Consumer Pro., 841 A.2d 292,


                                         8
299 (Conn. Super. Ct. 2003) (noting that “restitution is commonly defined as
the return or restoration of some specific thing to its rightful owner or status,”
but can also refer to disgorgement or compensation for injury (quotation and
brackets omitted)); Frank Shop v. Crown Cent. Petroleum Corp., 564 S.E.2d
134, 140 (Va. 2002) (describing disgorgement as giving up something on
compulsion by law “with the amount disgorged awarded to the party damaged
by the illegal act”). Thus, to the extent the presiding officer concluded that he
lacked the authority to penalize a violation of RSA 5-B:5, I(c) by ordering
payment to former members of a pooled risk management program as either
restitution or disgorgement, he committed an error of law. Accordingly, we
vacate the presiding officer’s decision and remand for further proceedings. We
note that our decision merely clarifies the scope of the secretary’s authority
under RSA 5-B:4-a; we express no opinion as to what penalty should be
ordered in this case. Having found that the presiding officer committed legal
error, we need not address the plaintiffs’ argument that his decision is
unreasonable because it reaches a result that “is not fair, deserved, sensible or
appropriate.”

                                                  Affirmed in part; vacated
                                                  in part; and remanded.

      DALIANIS, C.J., and LYNN, J., concurred.




                                        9
