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Estate of Ethridge v. Recovery Management Systems (CA1 2/13/14)

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PLEASE NOTE that our link to the opinion now leads to the opinion  dated 5/13/2014, issued after a Motion for Reconsideration.

The case holds that Medicare part C (“Medicare Advantage”) plans have a lien against a personal-injury recovery. This will not surprise specialists in the mine field that this area of the law has become, though we’re happy to say we’re not among them. We mention the case because personal-injury practitioners will want to be aware of it.

Etheridge died in a nursing home; her estate sued the home; the case settled. The Advantage plan then sought reimbursement from the proceeds. The estate sued it for declaratory judgment. The trial court ruled for the plan; the Court of Appeals affirms.

Part C specifically pre-empts state law inconsistent with its “standards.” The court concludes that HHS regulations are Part C “standards” and that one of those regulations gives Advantage plan the same rights as traditional Medicare.

(link to opinion)

Lerner v. DMB Realty (CA1 2/13/14)

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Look closely and you’ll spot that this is a “modified” opinion. It does mention that the Court of Appeals requested some supplemental briefing. What it doesn’t mention is that the court requested that briefing after it published an opinion in the case. We blogged that here. This opinion supersedes one that is over a year old. Would it have been too much trouble to mention that?

The result of the case doesn’t change. The court’s discussion of the fraud allegation against the sellers is expanded somewhat. The precise legal effect of the changes isn’t clear but its purport is apparently to help convince the majority that not revealing something you have no obligation to reveal can indeed be fraud if you’re asked a direct question the truthful answer to which would reveal it.

(link to opinion)

Monroe v. BASIS School (CA2 2/10/14)

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A case about a school’s duty of care to its students, mostly following the common law.

A girl was hit by a bus at a busy intersection on her way to school. The intersection had a crosswalk, walk signs, etc. but it didn’t have a crossing guard. So when she came of age she sued the school, alleging that it should have put a crossing guard at the intersection. The school argued that it had no duty and the trial court granted it summary judgment. The plaintiff appealed; the Court of Appeals affirms.

The court cites and follows the common law, which is basically that a school has no duty to students off the premises unless it’s a school activity, a school operation (the example being the Warrington cases concerning a school’s decision about where to put its bus stops), or a duty voluntarily undertaken (three guesses why this school might have thought twice about putting a crossing guard at a busy intersection; but lawyers make life safer, you know).

Plaintiff argued that the school had a statutory duty because the charter-school statutes require them to follow all health and safety rules and regulations.That includes, she contended, an ADOT manual about traffic safety in school areas. But the manual had not been enacted as a regulation and the statute it references does not authorize regulations about crossing guards.

For some reason the court then doubles back to the common law and considers whether a duty exists on the basis of public policy. But the legislature has not chosen to create one. Plaintiff “cites no public policy authority” in favor of a general duty of care to students away from school.

(link to opinion)