Ackre v. Chapman & Chapman, P.C.
v.
Chapman & Chapman, P.C., Defendant and Appellee
Judge Michael G. Sturdevant
| Appellant: | Larry Michel Baer | |
| Appellee: | Patrick W. Durick | |
| Appellee: | Zachary Evan Pelham |
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I. Does a North Dakota treating Hospital which provides treatment of a tort victim's injuries, acquire a statutory first lien upon the tort claims of its patients? This questions is answered through a series of sub-parts.
A. On February 10, 2004, did Trinity Hospital possess a statutory first lien interest over the tort settlement proceeds held by the Chapman Law Firm?
B. Does a treating hospital acquire a first lien interest?
C. Must a ND Hospital take any affirmative action to perfect its lien interest?
D. Was the Hospital Lien still enforceable on the date of tort payment settlement?
E. Is the amount of a North Dakota hospital lien, after Medicare tenders conditional payment, the gross amount billed?
II. Has the State of North Dakota has statutorily modified the Common Law "Collateral Source Rule" applicable to tort victim recovery of expenses paid by third parties in cases in which the tort victim has paid no premium to earn entitlement?
A. Does North Dakota's statutory collateral source rule requires exclusion of third party payments made for the benefit of Medicare recipients under Medicare, Part B?
III. Has the Federal Government Modified the Common Law "Collateral Source Rule" applicable to tort victim recovery from tortfeasor?
IV. Is Medical insurance coverages provided by the United States Department of Health and Human Services under the Medicare program "secondary" insurance coverage to all legislatively defined "primary" insurances?
V. Does the fraudulent collection of assets known to belong to a third party creates a constructive trust for the benefit of the third party.
VI. IS DEFENDANT LIABILITY TO MR. ACKRE?
A. Does Attorney misconduct creates a civil action for the benefit of all parties injured thereby, including competing attorneys?
B. Does a law firm which engages in Deceptive Acts or Practices, Fraud, False Pretense, False Promise, or Misrepresentation, with the Intent that others rely thereon in connection with the sale of the attorney's legal services is, like any other merchant of services, subject to private enforcement of the Unlawful Sales or Advertising Practices Act ?
Reply Brief Issues
I. North Dakota is a "notice pleading" jurisdiction.
II. Until unconditionally paid in full, a hospital lien is not discharged.
III. Purpose of the federal and state law is to deny a tort victim double recovery windfalls.
IV. The provisions of section 27-13-08, N.D.C.C., "Misconduct of Attorney" are not limited in scope to actions in deceit
V. It is premature to address the nature and scope of damages.
Appellee's Statement of the Issues:
1. Whether the District Court erred in holding that Mr. Ackre was not a protected party or third party beneficiary entitled to the protection offered by 27-13-08, N.D.C.C.
a. Whether Mr. Ackre's arguments concerning Medicare were presented in the Court below and should be considered by this Court.
2.Whether the District Court erred in holding that the Chapman law firm did not commit any unlawful sales practices under 51-15-02 and 51-15-09, N.D.C.C.
3. Assuming arguendo, Chapman & Chapman's liability for reimbursement of medical expenses, whether Mr. Ackre can prove any damages
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