2012-00119465-CU-BC

Carrie Bartevian vs. LA Amistad

Nature of Proceeding: Motion to Enforce Settlement

Filed By: Miller Jr., John C.

Plaintiff’s Motion to Enforce Settlement Agreement signed May 9, 2013 is denied.

This case arises out of allegations that plaintiffs suffered personal injuries arising out of
water intrusion and mold in their residence. The case settled at a mediation on May 9,
2013. Plaintiff’s attach as Ex. A the document signed at the mediation entitled
“Settlement and Compromise Agreement” that states “Plaintiff shall be responsible for
all liens, including those of health care providers relating to claims in this matter, and
further, Plaintiff Carrie Bartevian agrees to execute all necessary Medicare documents
required by Traveler’s Insurance Company. Final closing papers, if any, shall be
exchanged within 15 days of this agreement” The Agreement also contained the condition that a Minors Compromise approval must
be obtained. Plaintiff sent the order approving minors compromise to the Defendant in
August of 2013. In response, defendant asked plaintiff to execute the Medicare
affidavit that was also required by the May 9, 2013 agreement, as well as a second
settlement agreement that defendant believes embodies all the terms of the first
signed agreement. Plaintiff contends that the first agreement was the final agreement,
not requiring a second settlement agreement. Plaintiff refused to execute the
Medicare Affidavit since it was not presented to her within 15 days of May 9, 2013,
even though plaintiff did not obtain the minor’s comp approval until August of 2013.

The Medicare Secondary Payer Act (“MSP”) gives the Centers for Medicare and
Medicaid Services (“CMS”) the right to be repaid any Medicare benefits paid for an
injury when that injury was caused by another person. (See 42 U.S.C. § 1395y(b)(2).)
Although the MSP is a Federal Law, it applies to all personal injury suits in California
when the tort plaintiff has received or is eligible for payments under Medicare. In 2010,
insurance companies and other businesses and entities, including defendants in
litigation involving a Medicare beneficiary, were tasked with a new requirement to
report virtually all settlements so that Medicare may determine if it has a stake in any
part of the payment. Given the grave adverse consequences an insurance company
faces if it fails to inform the government of a settlement involving a person who may be
eligible for Medicare, insurance companies require settling parties to attest to certain
facts.

The defendants insurer will not release the settlement funds unless plaintiff signs a
“Medicare Affidavit” stating, inter alia, that no Medicare or other medical liens of any
kind exist and that plaintiffs assume responsibility for all liens. The Court finds that this
agreement is within the terms of the Settlement Agreement that requires plaintiff to
execute the Medicare form (“Affidavit of Plaintiff”) attached to Exhibit B to the
opposition. Therefore, no settlement funds need be released until the plaintiff
executes the form. It is not clear from the terms of the May agreement that the
required Medicare Affidavit is a “final closing paper” as referenced in the May
agreement, and moreover it is unreasonable to interpret the agreement in that manner
when plaintiff did not send the minors comp approval to defendant until August.

The Court finds that the parties entered into a valid and binding settlement. Hines v
Lukes (2008) 167 Cal.App.4th 1174, 1182. The parties disagree about the material
terms, however the settlement agreement contained two conditions, the first was the
approval of the minors compromise, which occurred three months after the mediation,
and the second condition was the execution of all necessary Medicare documents
required by Travelers’ Insurance Company.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.