Date: 06-08-2013

Case Style: Stephen Goodell v. Dallas Miller

Case Number: CJ-2012-2522

Judge: Jefferson D. Sellers

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Thomas E. Baker and Phillip R. Evans

Defendant's Attorney: Michael G. McAtee for Dallas Miller

Michael D. Gray for Blue Cross Blue Shield of Oklahoam

Description: Stephen Goodell and Melissa Goodell sued Dallas Miller on auto negligence theories claiming:

I. All acts or omissions complained of occurred within Tulsa County, State of Oklahoma. Jurisdiction and venue are therefore proper in this court.

II. On or about April 23, 2012, Defendant Miller negligently operated his motor vehicle causing it to collide with the motor vehicle driven by Plaintiff Stephen Goodell.

III. The collision damaged the Plaintiffs’ 2000 model Chrysler CXL in an approximate amount of $4,500.00.

IV. The collision proximatdy caused each of the Plaintiffs personal injury, medical expenses, and has cost the adult Plaintiffs lost wages and income

V. Plaintiffs’ damages exceed $75,000 00.

WHEREFORE, Plaintiffs pray for damages against the Defendant in an amount in excess of $75,000.00 together with fees, costs, interest, and all and any other relief to whichthr1 court deem them entitled.

Dallas Miller appeared and answered as follows:

1. The Defendant admits the allegations contained in Paragraph I of Plaintiffs’ Petition.

2. The Defendant denies the allegations contained in Paragrapbs2, 3, 4 and 5 of

Plaintiffs Petition and demands strict proof thereof.

AFFIRMATIVE DEFENSES

3. The mczdent complained of in the Plaintiffs’ Petition was cd byjle negligence of third parties over whom this Defendant bad no control or supervision, thcfore, liability will not attach to this Defendant,

4. The incident complained of in the Plaintiffs’ Petition was the direct result of the negligence of the Plaintiffs in a degree to either prohibit or lessen any recovery thereunder.

5. The injuries complained of by the Plaintiffs were not the proximate result of an actions ofs Defendant.

6. The incident complained of in the Plaintiffs’ Petition was the result of a sudden emergency and/or unavoidable casualty presented to this Defendant and, at all times pertinent thereto, this Defendant acted reasonably and prudently; and therefore, liability will not attach to this Defendant.

7. The Plaintiffs sustained no injuxy or was not injured as severely as alleged as a result of the incident in this suit.

8. Plaintiffs vohmtarily assumed the risk of a known danger and are not entitled to recover herein. stated.

9. The Plaintiffs’ Petition fails to state a claim upon which relief can be granted.

10. The Defendant reserves the right to amend or abandon any or all of the allegations

11. It is anticipated that additional afftnnative defenses will become known through the discovery process; therefore, this Defendant reserves the right to plead them as they are discovered.

WHEREFORE, the Defendant, Dallas Miller, prays that judgment be rendered in his favor, that be be awarded his costs and attorney fees, and any and all other relief the Court deems just and equitable.

Plaintiff filed a motion to disburse settlement funds:

1. On or about the 23M day of April, 2012, the Plaintiffs, Stephen Goodall and Melissa Goodall, individually, and as natural parents and next friends of G.G., KG. and P.G., minors, were involved in a motor vehicle accident with Dallas Miller, in Tulsa County, Oklahoma.

2. As a result of the motor vehicle accident, the Plaintiffs, Stephen Goodall and Melissa Goodall, and their minor children, G,G., KG. and P.G., sustained personaJ injupits and incurred medical treatment and expenses

3. As a result of the injunes sustained by the above named individuals, numth8us lien claimants exist as to the settlement proceeds

4. The Plaintiffs and Defendant have reached a settlement agreement of alt pending claims in the amount of$100,000.00, which is the insurance policy limit of the Defendant.

5. The Defendant’s liability insurance policy limit coverage was in the amount or $50,000.00 per person and $100,000.00 per occurrence.

6. Due to the extent of all of the Plaintiffs’ injuries, there are insufficient funds for Plaintiffs to be fully compensated. Therefore, Plaintiffs request this Court to enter an Order disbursing the settlement proceeds.

WHEREFORE, premised considered, Plaintiffs request that this Court issue an Order disbursing the settlement proceeds, and for all other and further relief as the Court deems just and equitable.

Blue Cross and Blue Shield appeared and answered as follows:

1. BCBS is without sufficient information and knowledge to the allegations in paragraph 1 and therefore denies the same.

2. BCBS is without sufficient information and knowledge to the allegations set forth in paragraph 2 and therefore denies the same.

3. BCBS is without sufficient information and knowledge to the allegations set forth in paragraph 3 and therefQre.denies the same.

4. BCBS admits paragraph 1 under the Second Cause of Action, that BCBS did provide benefits that were available to Plaintiffs.

5. BCBS admits paragraph 2 under the Second Cause of Action.

6. Regarding the allegations of paragraph 3 under the Second Cause of Action, BCBS denies that the Goodells had appellate rights granted to them regarding the issue of subrogation. The appellate rights granted to the Goodells in their plan did not include the issue of subrogation. BCBS admits that the Goodells filed an unauthorized appeal on September 10, 2012. BCBS denies that it has failed to respond to the unauthorized appeal filed by the Goodells. BCBS’s subrogation service department informed the Goodells that there was no authority to compromise the subrogation and a 100% reimbursement would be sought, before the unauthorized appeal was filed. The Goodells even state this information in their appeal. BCBS denies that it has breached its contract with the Plaintiffs.

7. Regarding the allegations of paragraph 4 under the Second Cause of Action, BCBS admits the Goodells filed an amendment to their appeal, but denies that there was any right under the Plan to file an appeal or amend an appeal. The rights to the appellate process under the BCBS Plan does not cover the issue of subrogation. BCBS denies that it failed to respond to this unauthorized appeal and amendment. BCBS denies that it is in breach of contract.

AFFIRMATIVE DEFENSES

1. That the Plaintiffs, Stephen and Melissa Goodell, and their minor children, were, at the time of the accident referenced herein, insureds covered under a BCBS health insurance plan.

2. That in accordance with the terms of the plan under which the Goodell family was covered; the plan has a right of subrogation to the funds at issue herein.

3. That pursuant to the terms and provisions of the plan, the “make whole” rule does not apply.

4. That pursuant to the terms and provisions of the plan, the rights of the answering Defendant herein are considered as a first priority claim against funds, such as those at issue herein. “Each Covered Person agrees that the Plan shall have a first lien on any settlement proceeds and the Covered Person shall reimburse and pay the Plan, on a first-priority basis.” See Cherokee Nation Enterprises, Inc. Plan Page 56 (Exhibit “A”). As a first priority claim, the funds, at issue herein, are to paid to the answering Defendant herein, BCBS, before any of the claims of other rendering any services or having any said claims to or against the Plaintiff, or any funds derived from any action against any third party tortfeasor.

5. That the lien of BCBS was first in time, and all others had notice of said lien, hence BCBS has a first priority lien on the funds.

6. That in this matter, this answering Defendant’s contractual provision specifically establishes priority regarding the apportionment of settlement funds as the Goodell’s herein accepted insurance proceeds from the answering Defendant, and in so doing, the Goodell’s agreed that the answering Defendant should have a first lien on any and all settlement proceeds, that they would reimburse the answering Defendant herein on a first priority basis from any money recovered by suit, settlement, judgment or otherwise from any third party and/or his or her insurer, and/or from any carrier providing uninsured/underinsured motorist coverage.

7. The answering Defendant herein has a reimbursement interest, lien, expressed trust, constructive trust and equitable lien arising from the payment, of the sum of $39,610.28 (subject to increase) in health care claims on behalf of the Goodell family, which were paid as a result of the accident that is the subject of this civil action.

8. That the answering Defendant herein has the right to recover 100% of the benefits paid by it from the funds.

9. That the answering Defendant’s insurance policy is governed by ERISA.

10. That the answering Defendant herein is entitled to reimbursement of its expenditure in the sum of $39,610.28 (subject to increase) prior to the reimbursement or payment of any other claimant herein, by way of a constructive trust and equitable lien as regards to the available settlement funds.

11. The Appeals Process through BCBS does not cover subrogation. The Appeals Process is reserved for issues such as benefit determination and precertification decisions. There Plaintiffs had no right under the Plan to file an appeal regarding subrogation.

12. In the unauthorized appeal of September 10, 2012, filed with BCBS by the Goodells, the Goodells state that they had already discussed the issue of subrogation with the reimbursement/subrogation service department. The Goodells admit that the department informed them that there was no authority to compromise the subrogation and that 100% reimbursement would be sought. Plaintiffs claim BCB S failed to answer their unauthorized appeal, but the answer to the issue had already been resolved through the proper subrogation service department.

13. That his answering Defendant reserves the right to further plead, add additional Affirmative Defenses or answer as additional information becomes known.

WHEREFORE, Defendant, BCBS, prays that it awarded reimbursement, a constructive trust and equitable lien in the sum of $39,610.28 (subject to increase) from the settlement funds plus any other relief to which it is justly entitled.

Outcome: SELLERS, JEFFERSON D.: HEARING HELD. TOM BAKER APPEARS FOR PLAINTIFF ANDREW SWARTZ APPEARS FOR BLUE CROSS AND JARED LENTZ APPEARS FOR ST. FRANCIS. HAVING HEARD THE ARGUMENTS OF COUNSEL AND NOW HAVING REVIEWED THE AUTHORITIES PROVIDED THE COURT, THE COURT CONCLUDES, UNDER THE PARTICULAR LANGUAGE OF THE PLAN DESCRIPTION, IT HAS NO DISCRETION TO REDUCE THE CONTRACTUAL AMOUNT OF BCBS REPAYMENT AND THEREFORE ORDERS DISBURSEMENT TO BLUE CROSS AND BLUE SHIELD OF OK FROM THE SETTLEMENT AMOUNTS, AS FOLLOWS:

STEPHEN $9,274.33 MELISSA $6,938.34 KYLEE $2,159.43 GRANT $1,201.80 PEYTON $19,835.18 ________ TOTAL $39,409.08.

THE COURT APPROVES THE DISBURSEMENT TO ST. FRANCIS ON THE AGREED ONE-THIRD REDUCTION BASIS.

Plaintiff's Experts:

Defendant's Experts:

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