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Volume XXVI, No. 18, August 11, 2014    

From the Law Offices of Garan Lucow Miller, P.C.

From the Editor: Sarah Nadeau 

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Confusion Remains As To Whether The Medicare Secondary Payer Act Applies to Claims For Payment Of No-Fault Benefits

CONTRIBUTOR – M. SEAN FOSMIRE

 

On July 16, 2014, the Sixth Circuit Court of Appeals issued its decision in Michigan Spine and Brain Surgeons PLLC v State Farm Mutual Automobile Insurance Company, on appeal from a decision of District Judge Sean F. Cox of the Eastern District of Michigan. Michigan Spine originally brought suit against State Farm in state court, asserting a claim for direct payment of benefits under Michigan’s No–Fault Act as well as a claim for damages under the Medicare Secondary Payer Act, which permits private causes of action against primary plans that fail to pay medical expenses for which they are responsible. State Farm removed the action to federal court and filed a motion to dismiss and/or motion for partial summary judgment on the Medicare Secondary Payer Act claim. The District Court granted State Farm’s motion, holding that Michigan Spine’s claim was foreclosed by the Sixth Circuit’s prior decision in Bio–Medical Applications of Tennessee, Inc. v. Central States Southeast & Southwest Areas Health & Welfare Fund, 656 F.3d 277, 285 (6th Cir.2011).

In Michigan Spine, the Sixth Circuit held that the District Court had improperly dismissed the claims against State Farm. The Sixth Circuit ordered the claims against State Farm be reinstated and the case was returned to the District Court for further proceedings consistent with the Sixth Circuit’s Opinion.

The Sixth Circuit, in overruling the District Court, held that Michigan Spine was not required to plead or prove that State Farm had denied no fault benefits because the individual insured was a Medicare beneficiary.  In so ruling, the Sixth Circuit appears to have resurrected the District Court’s initial ruling that the “demonstrated responsibility” requirement of the Medicare Secondary Payer Act does not apply to a case based on a contract claim rather than a tort claim (ie. a claim seeking payment of no-fault benefits).  However, the District Court’s ruling had been based on language previously used by the Sixth Circuit in Bio-Medical Applications of Tennessee, Inc. v. Central States Southeast & Southwest Areas Health & Welfare Fund, 656 F.3d 277, 285 (6th Cir. 2011),

Therefore, the state of the law on this issue is very confused at this point. At our GLM Medicare news webblog, http://medicarenews.us , we have posted a more detailed analysis of the ruling, as well as of the antecedent case of Bio-Medical Applications and the two previous rulings of the District Court. The overall conclusion for no fault insurers is:

• The declaration in the case of Bio-Medical Applications was that there is no need for a plaintiff to plead or prove that the defendant had an obligation to pay a medical expense that has been paid by Medicare before making a claim under the private cause of action section of the Medicare statute, when the obligation arises under contract rather than as a result of negligence.

• The lower courts have, as predicted, attempted to apply this language to no-fault insurers, disregarding the crucial difference between health insurance, which has a plenary obligation to pay all medical expenses, and no-fault insurance, which has an obligation only to pay the medical expenses arising from a motor vehicle accident.

• The courts are expected to continue to demonstrate confusion in this area until the Sixth Circuit sorts out the issues and makes a clearer declaration of what the law is than it has done to date.

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REGISTER NOW! | TROY BREAKFAST SEMINAR

Garan Lucow Miller P.C., is hosting its annual Troy Breakfast Seminar on Thursday, September 4, 2014 at the Troy Marriott.  Please see the Agenda below:

8:00 -  9:00 A.M. CONTINENTAL BREAKFAST / REGISTRATION

9:00 -  9:05 A.M. WELCOME AND INTRODUCTION

Speaker: DANIEL S. SAYLOR, ESQ.

9:05 -  9:40 A.M. STRATEGIES FOR HANDLING VEHICLE & HOME MODIFICATION CLAIMS

Speaker: EMILY L. PARTRIDGE, ESQ.

9:40 – 10:20 A.M. NO-FAULT UPDATE

Speaker: DANIEL S. SAYLOR, ESQ.

10:20 – 10:40 A.M. AFFORDABLE CARE ACT AND ITS INTERACTION WITH PIP

Speaker: ROBERT L. GOLDENBOGEN, ESQ.

10:40 – 10:55 A.M. BREAK

10:55 – 11:15 A.M. BENEFITS OF USING APPELLATE COUNSEL DURING PRE-TRIAL AND TRIAL PROCEEDINGS

Speaker: CARYN A. FORD, ESQ.

11:15 – 12:00 P.M. CALCULATING WAGE LOSS AND DETECTING FRAUD

Speaker: GARY NAYH, C. P. A.

12:00 – 12:35 P.M. DEPOSITIONS OF CLAIM STAFF: WHY WOULD YOU? HOW COULD YOU?

Speaker: JOHN W. WHITMAN, ESQ.

12:35 P.M. QUESTION AND ANSWER SESSION – CONCLUDING REMARKS

Turn in Evaluation Forms

Comprehensive written materials will be distributed to all program attendees.

Garan Lucow Miller reserves the right to restrict attendance to clients only.

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SAVE THE DATE | BUCKEYE SEMINAR

THE BUCKEYE SEMINAR WILL TAKE PLACE ON THURSDAY, OCTOBER 23RD, 2014, AT THE GREATER COLUMBUS CONVENTION CENTER.  WATCH LAW FAX FOR REGISTRATION AND FURTHER DETAILS.

 

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REGISTER NOW! Basics of Michigan Automobile No-Fault Insurance Law Course

Garan Lucow Miller, P.C. is pleased again to offer this in-depth, educational course in the fall of 2014. It will be taught each Tuesday evening, beginning September 30, 2014 and running through November 25, 2014.

The course will be held at the Crowne Plaza, 925 S. Creyts Road, Lansing MI from 6:00 pm to 8:00 pm.

This is an ideal course for new claims professionals or anyone else seeking a comprehensive refresher of the Michigan No-Fault Act. It is being taught by several experts in the area of No-Fault law from across the state.

The cost of the 9 week course is $350.00 per person, with a discount of $50.00 per person for more than 2 registrants from the same company.

To register for this comprehensive course, please contact Eileen Carty at ecarty@garanlucow.com or call 800-875-7600.

Click here for the course curriculum.

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GLM NEWS

John McSorley Recipient of the Respected Advocate Award!

John will receive the Respected Advocate Award from the Michigan Association for Justice on September 17, 2014.

The Respected Advocate Award was created in conjunction with the Michigan Defense Trial Counsel to recognize superb skills in a courtroom adversary whose civility, ethics, and decorum distinguish him or her as an outstanding example of what trial counsel should strive to be.

Congratulations John!

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Ebony Duff has been selected as one of the Michigan Lawyers Weekly  “Women in the Law 2014″!

Congratulations to Ebony on being selected as one of the “Women in the Law 2014″ by Michigan Lawyers Weekly.

This program is dedicated to saluting women who have made meaningful and inspiring contributions to the legal community and have exemplified the noble tradition of the legal profession.

Congratulations Ebony on this much deserved honor!