Grey Bear v. DEPT. OF HUMAN SERVICES

• Decision Date: 23 August 2002
• Docket Number: No. 20010241.,20010241.
• Citation: 2002 ND 139,651 N.W.2d 611
• Parties: Delano GREY BEAR, Plaintiff and Appellant, v. NORTH DAKOTA DEPARTMENT OF HUMAN SERVICES, Defendant and Appellee, v. Robert V. Bolinske, Additional Defendant on Counterclaim and Appellant.
• Court: North Dakota Supreme Court

651 N.W.2d 611

2002 ND 139

Delano GREY BEAR, Plaintiff and Appellant, v. NORTH DAKOTA DEPARTMENT OF HUMAN SERVICES, Defendant and Appellee, v. Robert V. Bolinske, Additional Defendant on Counterclaim and Appellant.

No. 20010241.

Supreme Court of North Dakota.

August 23, 2002.

Robert V. Bolinske, Bismarck, N.D., for plaintiff and appellant.

Jean R. Mullen, Assistant Attorney General, Bismarck, N.D., for defendant and appellee.

NEUMANN, Justice.

[¶ 1] Delano Grey Bear and Robert V. Bolinske appeal from a judgment dismissing Grey Bear's claims against the Department of Human Services for intentional infliction of emotional distress and governmental bad faith, and granting summary judgment in favor of the Department on its claim for conversion. We affirm in part, and reverse in part.

I

[¶ 2] Delano Grey Bear was paralyzed from the neck down in a car accident in 1978. As a result of Grey Bear's longterm disability, the Department of Human Services had paid medical expenses in the form of Medicaid benefits on Grey Bear's behalf. In order to receive Medicaid benefits, Grey Bear assigned any rights of recovery he might have from any third-party to the Department for medical costs paid under the Medicaid program.

[¶ 3] As a result of a surgical procedure in 1994, Grey Bear required additional medical services that were paid by the Department through Medicaid. Grey Bear commenced a medical malpractice action because of complications arising from the surgery. The case was settled in 1998 for $30,000. Grey Bear's attorney deducted one-third of the judgment for attorney's fees, and half of the remaining amount was sent to the Department. The Department accepted the amount received, but demanded the entire judgment, less expenses and attorney's fees.

[¶ 4] Grey Bear sued the Department for intentional infliction of emotional distress and governmental bad faith claiming he was entitled to the entire judgment. The Department asserted a counterclaim arguing it was entitled to the entire judgment, less expenses and attorney's fees. The Department filed an amended counterclaim adding Grey Bear's attorney, Robert V. Bolinske, as a party, alleging a conspiracy to convert the Department's money. The Department moved for summary judgment on Grey Bear's complaint and on the Department's claims against Grey Bear and Bolinske. The trial court granted summary judgment in favor of the Department on all claims.

[¶ 5] Bolinske moved for reconsideration, claiming the trial court did not have personal jurisdiction over him because he was not served with a summons. The trial court denied Bolinske's motion and signed the judgment. Bolinske moved to vacate the judgment. The trial court vacated the judgment and the judge recused himself based on a concern for potential bias and an irritation with Bolinske's tactics. The case was reassigned. After reviewing the case file, the trial court granted summary judgment in favor of the Department. Grey Bear and Bolinske appeal.

II

[¶ 6] Grey Bear argues he made only a partial assignment under N.D.C.C. § 50-24.1-02.1, that he assigned only any claim he might have for medical costs. Grey Bear argues his medical malpractice action was not for medical costs, but for pain and suffering, claims which were never assigned to the Department under N.D.C.C. § 50-24.1-02.1. Therefore, Grey Bear contends, he is entitled to all the proceeds from the settlement.

[¶ 7] We are asked on appeal to determine the extent of the assignment granted under N.D.C.C. § 50-24.1-02.1. We recently delineated the standard of review for statutory interpretation:

The interpretation of a statute is a question of law, fully reviewable on appeal. Our primary objective in construing a statute is to ascertain the intent of the Legislature by looking at the language of the statute itself and giving it its plain, ordinary, and commonly understood meaning. Although courts may resort to extrinsic aids to interpret a statute if it is ambiguous, we look first to the statutory language, and if the language is clear and unambiguous, the legislative intent is presumed clear from the face of the statute. In interpreting a statute, we presume the Legislature did not intend an absurd or ludicrous result or unjust consequences. Rather, statutes are to be construed in a practical manner. We give consideration to the context of the statutes and the purposes for which they were enacted.

Olander Contracting Co. v. Gail Wachter Invs., 2002 ND 65, ¶ 43, 643 N.W.2d 29. However, we give some deference to a reasonable interpretation of a statute by the agency responsible for enforcing it, and give appreciable deference to agency expertise if the subject matter is highly technical. Consol. Tel. Coop. v. W. Wireless Corp., 2001 ND 209, ¶ 7, 637 N.W.2d 699.

[¶ 8] Some background about the relevant Medicaid statutes is necessary to fully understand the issue on appeal. Medicaid was enacted in 1965 to provide medical assistance to persons who lack sufficient income or resources to cover the costs of their own essential medical care. See 42 C.F.R. § 430.0; see also Krueger Estate v. Richland Cty. Soc. Serv., 526 N.W.2d 456, 457 (N.D.1994)

. The Medicaid program is governed by the Social Security Act, 42 U.S.C. §§ 1396-1396v, and is jointly financed by federal and state governments. Hecker v. Stark County Social Service Bd., 527 N.W.2d 226, 233 (N.D.1994). Once a state elects to participate in the Medicaid program, the federal government will share the costs if the state's plan complies with the requirements of the Act and the related regulations set forth by the Department of Health and Human Services.

Krueger Estate, at 457. Medicaid is intended to be the payor of last resort. Hecker, at 235. States must require medical assistance payment recipients to assign to the state any rights they have to reimbursement for medical care from any third parties. See 42 U.S.C. § 1396k. Section 1396k provides:

(a) For the purpose of assisting in the collection of medical support payments and other payments for medical care owed to recipients of medical assistance under the State plan approved under this title ..., a State plan for medical assistance shall—

(1) provide that, as a condition of eligibility for medical assistance under the State plan to an individual who has the legal capacity to execute an assignment for himself, the individual is required—

(A) to assign the State any rights, of the individual ... to payment for medical care from any third party

...

(b) Such part of any amount collected by the State under an assignment made under the provisions of this section shall be retained by the State as is necessary to reimburse it for medical assistance payments made on behalf of an individual with respect to whom such assignment was executed ... and the remainder of such amount collected shall be paid to such individual.

[¶ 9] The North Dakota legislature has given state agencies who provide assistance to needy persons the right to be reimbursed for that assistance from persons who have support obligations to those receiving the assistance. Mehl v. Mehl, 545 N.W.2d 777, 779 (N.D.1996). North Dakota has created a statutory assignment of claim to comply with the federal guidelines, under N.D.C.C. § 50-24.1-02.1, which provides:

Each applicant or recipient of benefits under this chapter must be deemed to have assigned, to the department of human services, any right of recovery the applicant or recipient may have for medical costs incurred under this chapter not exceeding the amount of funds expended by the department for the care and treatment of the applicant or recipient. The applicant or recipient, or other person empowered by law to act in the applicant's or recipient's behalf, shall execute and deliver an assignment of claim, assignment of rights, or other authorizations as necessary to secure fully the right of recovery of the department. The assignment:

1. Is effective as to both current and accrued medical support recovery obligations.

2. Takes effect upon a determination that an applicant is eligible for assistance under this chapter.

[¶ 10] Grey Bear argues his assignment under N.D.C.C. § 50-24.1-02.1 was only for medical expenses, and not his claim for pain and suffering. The same argument was raised in Link v. Town of Smithtown, 175 Misc.2d 238, 670 N.Y.S.2d 692 (1997). The plaintiff argued the State's recovery of medical assistance it paid on behalf of the plaintiff should be limited to that portion of the settlement proceeds allocated to reimburse the plaintiff for medical expenses, and not that portion of the settlement proceeds intended to compensate the plaintiff for pain and suffering. Link, 670 N.Y.S.2d at 695. In determining all of the proceeds of the settlement were available to satisfy the State's claim, the court analyzed both the federal and state assignment statutes. Id. The court concluded the language in the state statutes underscored the legislature's clear intention the state be afforded broad and extensive means to obtain third-party reimbursement of Medicaid expenditures. Id.

[¶ 11] Other courts when faced with the similar argument have reached the same conclusion as Link. See Wilson v. State of Washington, 142 Wash.2d 40, 10 P.3d 1061, 1066 (2000),

cert. denied, 532 U.S. 1020, 121 S.Ct. 1959, 149 L.Ed.2d 755 (2001) (stating reimbursement is not limited to the recovery allocated specifically to medical expenses); Waldman v. Candia, 317 N.J.Super. 464, 722 A.2d 581, 587 (1999) (stating the New Jersey Medicaid statute does not distinguish between categories of damages); Calvanese v. Calvanese, 93 N.Y.2d 111, 688 N.Y.S.2d 479, 710 N.E.2d 1079, 1081 (1999). But see Martin v. City of Rochester, 642 N.W.2d 1 (Minn. 2002) (stating the state becomes the owner of the claim against a third party for medical expenses, but the recipient retains ownership of any other claims); Arizona Health Care Cost Containment System v. Bentley, 187...