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Better Writing: William Safire's Self-Violating Rules

I never intended to be a writer.  I really don't consider myself a writer.  I'm a speaker, and there is a difference.  As a speaker, I can muddle through bad grammar, odd word placement, and misuse of terms and phrases by modulating my voice, raising an eyebrow, or using a great hand gesture.

People speak differently from how they write.  On this blog, I don't try to "write" I simply type what I would probably say if you and I were sitting down to have a discussion about a topic.

That said, I found this great collection of writing tips from William Safire, the writer, columnist, and word snob.  I love his stuff, even if I don't always follow his conventions.

Here is his list of rules (see if you notice something about them....)

William Safire's Rules for Writers:

  1.   Remember to never split an infinitive.    
  2.   The passive voice should never be used.    
  3.   Do not put statements in the negative form.    
  4.   Verbs have to agree with their subjects.    
  5.   Proofread carefully to see if you words out.    
  6.   If you reread your work, you can find on rereading a great deal of repetition can be by rereading and editing.    
  7.   A writer must not shift your point of view.    
  8.   And don't start a sentence with a conjunction. (Remember, too, a preposition is a terrible word to end a sentence with.)    
  9.   Don't overuse exclamation marks!!    
  10.   Place pronouns as close as possible, especially in long sentences, as of 10 or more words, to their antecedents.    
  11.   Writing carefully, dangling participles must be avoided.    
  12.   If any word is improper at the end of a sentence, a linking verb is.    
  13.   Take the bull by the hand and avoid mixing metaphors.    
  14.   Avoid trendy locutions that sound flaky.    
  15.   Everyone should be careful to use a singular pronoun with singular nouns in their writing.    
  16.   Always pick on the correct idiom.    
  17.   The adverb always follows the verb.    
  18.   Last but not least, avoid cliches like the plague; seek viable alternatives.

Good stuff.

Chris Nichols 1.800.906.5984

State Employee Health Lien: no cap under Wrongful Death Statute

When the changes to the State Employee Health Plan lien were enacted on October 1, 2006, the Legislature specifically exempted the SEHP from the $4,500 cap that is normally placed on medical providers collecting from wrongful death settlements.

Specifically, the Wrongful death Act (N.C.G.S. § 28A-18-2(a) ) was amended to say:

The limitations on recovery for hospital and medical expenses under this subsection do not apply to subrogation rights exercised pursuant to G.S. 135-40.13A.

This subsection becomes effective for deaths occuring on or after October 1, 2006.  The Plan is still limted to recovering no more than 50% of the net settlement after "reasonable collection costs" are subtracted from the total settlement.  "Reasonable" is presumed to be 33.3% by SEHP.

Chris Nichols 1.800.906.5984

NC Medicaid and Ahlborn: Ezell not fixed by NC Supreme Court

Just a quick post for anyone following the ongoing saga of the Ezell case in NC.  Our Supreme Court denied the Motion for Rehearing on Friday, December 15th.  You can view the depressing Order here.

Here is the link to the posts on this Blog that discuss Ahlborn and Ezell.

So what does it mean that Ezell stands as the law in NC? Well, it means that we have the Dissenting Court of Appeals opinion in Ezell which I believe is directly contracdictory to the SCOTUS opinion in Ahlborn.  Yet, our NC Supreme Court either refused to recognize that, or I'm just misunderstanding a lot of law.

I would consider the later, but John Saxon of the UNC Institute of Government seems to agree with me in a great article he wrote.  You can read the .pdf version by following this link.
If you would like a hard copy of Saxon's article, you can order it for five dollars here.

In his article, John summarizes the relevant case law on Medicaid liens and provides an excellent analysis of the Ahlborn and Ezell opinions.  He sums up his research this way:

Like Arkansas’ Medicaid third party liability statutes, [NC]G.S. 108A-57 and G.S. 108A-59, read literally, apply broadly to all of a Medicaid beneficiary’s rights of recovery against tortfeasors, insurance companies, andother third parties.77 G.S. 108A-57, for example, provides that the state Medicaid program is
“subrogated to all rights of recovery, contractual or otherwise, of the [Medicaid] beneficiary … against any person.” Similarly, G.S. 108A-59 requires the
assignment of a Medicaid beneficiary’s “right to third party benefits, contractual or otherwise,” without any express limitation as to the type or scope of these rights or benefits. And the North Carolina Supreme Court’s decision in Ezell only reinforces this reading.

But to the extent that G.S. 108A-57 and G.S. 108A-59 apply to a Medicaid beneficiary’s right to recover payments from a third party for claims other than those for medical expenses that have been, or will be, covered by the State’s Medicaid program, they
suffer from the same defect as Arkansas’ Medicaid third party liability statutes and are therefore invalid under the federal Medicaid statute and the Ahlborn decision.

Similarly, to the extent that the North Carolina Supreme Court’s decision in Ezell and the North Carolina Court of Appeals’ decision in Campbell hold that a Medicaid TPL claim may be asserted against the portion of a personal injury settlement that compensates a Medicaid beneficiary for damages other than medical expenses, they are inconsistent with the U.S. Supreme Court’s decision in Ahlborn and therefore are not good law.

So it looks like at least one other person agrees with me that Ahlborn and Ezell can not be reconciled.  Looks like lawyers in North Carolina will have to pursue a new remedy in the Legislature, or in Federal Court.

Does anyone else have a different take on this?  Can Ezell be limited to only the facts of that case?

Chris Nichols
Nichols Law Firm 1.800.906.5984

Request for Monetary Relief Ideas

In North Carolina, pursuant to NCGS Chapter 1A Rules of Civil Procedure, Rule 8(A), when a Plaintiff files a lawsuit, the Plaintiff may not state a specific amount of relief sought other than to specify that the case seeks either less than $10,000.00 (District Court) or an amount exceeding $10,000.00 (Superior Court).

Under Rule 8A(2), a party may make a written request to another party to seek the exact amount of relief sought in the suit.  This is called a "Request for Statement of Monetary Relief".  The Rule says:

Rule 8A(2)       A demand for judgment for the relief to which he deems himself entitled. Relief in the alternative or of several different types may be demanded. In all negligence actions, and in all claims for punitive damages in any civil action, wherein the matter in controversy exceeds the sum or value of ten thousand dollars ($10,000), the pleading shall not state the demand for monetary relief, but shall state that the relief demanded is for damages incurred or to be incurred in excess of ten thousand dollars ($10,000). However, at any time after service of the claim for relief, any party may request of the claimant a written statement of the monetary relief sought, and the claimant shall, within 30 days after such service, provide such statement, which shall not be filed with the clerk until the action has been called for trial or entry of default entered. Such statement may be amended in the manner and at times as provided by Rule 15.

Requests for Monetary Relief pose a few problems for Plaintiffs.  The first problem is that sometimes the Plaintiff is not yet certain of the exact amount of relief sought.  This may happen if an injury is ongoing, a plaintiff has not recovered from the injury, or the recovery is uncertain.  Sometimes the amount sought is not certain because to determine the exact amount of injury may take further discovery in the suit.

The second problem is that there is an argument, at least, that a Plaintiff may be questioned about the Amount of Monetary Relief Sought, and that the response may be admissible at trial.  This can pose a problem if the attorney responding to the Request "throws out" a single large number that is unreasonable, or may appear unreasonable at the time of trial.  Further, if the trial is not going well, or some key piece of evidence is excluded, even what might have been a reasonable Response amount, might look fully unreasonable (to a jury) at some later date.

Thus, when you respond to a Request for Monetary Relief Sought, I recommend a few things:

Request a range of compensation. 
The rules do not specify that the Plaintiff name a "single" dollar figure.  The rules are fairly vague in terms of itemizing damages.  I suggest asking for a range that you will feel comfortable having a jury hear, even if you don't expect them to ever see the Response.

Leave the door open. 
Even though the Rules specifically allow for amending a the Response, reserve the right to amend in the Response.

Tell the whole truth so the Statement is not attractive as evidence. 
Don't just request a figure, explain where that figure comes from and any other limiting factors or explanations.


That Plaintiff requests monetary relief in an amount of $ LOW RANGE to $ HIGH RANGE dollars at this time.  Plaintiff can not give a more specific answer to this request at this time as discovery is still ongoing in this matter. Further, plaintiff asserts that Plaintiff is entitled to damages for past, present, and future pain and suffering, loss of enjoyment of life, loss of use of a part of the body, and permanent disability.  These damages can not be determined by any formula and are to be determined by a jury in a manner which is just and fair. Further, Plaintiff's request includes damages for (include other elements of damages as related to claim).  In any event, the Plaintiff does not request relief to exceed the liability insurance policy of the defendant provided by (INS CO) in the amount of $(LIMITS) though reserves the right to amend this statement of relief requested.

Obviously, if you are requesting an amount that you believe exceeds the insurance policy limits, you may want to change that language or omit it.

I have used this format for many years and only once received an objection, though that objection never went anywhere.  Also, I've never had a defense attorney attempt to enter the Request Response into evidence.  Under NC case law, it seems clear that the Plaintiff would be allowed to explain the request and that that explanation could include the mention of insurance (depending on the Judge, of course).  And don't forget, DON'T FILE THE RESPONSE WITH THE COURT.


Chris Nichols

Nichols Law Firm 1.800.906.5984

Medicaid v. State Employees v. Medical Provider Liens: An Epic Battle

I recently received a great question from an attorney regarding the interplay of Medicaid, State Employee Helath Plan, and Medical Provider Liens.  With the recent developments in Medicaid subrogation law (The SCOTUS decision in Ahlborn and North Carolina Supreme Court ruling in Ezell) and the "new" amended statute for the State employee Health Lien, lawyers are left scratching their heads on hoow to address the competing liens of these entities.

The Question:

We recently settled a case on behalf of a minor.  There is a Medicaid, a SEHP and a hospital lien.  Medicaid lien is much greater than the other two, but payment in full of all three would be less than 1/3 of the total net proceeds to the minor. 

By way of example (not actual numbers): Assume a $100,000 settlement and attorney fees and costs of $30,000.  Liens total $30,000.  $15,000 Medicaid, $10,000 SEHP and $5,000 Medical providers.  Here's the catch: parent's claim had run prior to suit being brought, thus the entire settlement was for minor's pain and suffering, future lost wages, and future medical expenses.  Under Ahlborn it would seem that Medicaid has no right of recovery (a percentage of nothing is nothing) but that the SEHP and Medical Providers would get paid in full.

Have you seen an NC case like this go through the system post-Ahlborn or has the scenario been discussed at any of the meetings you have attended?

MY Answer:
You win the award for "best law school exam question on liens"!

No case like yours has come forward yet, but I was expecting one.  The folks at SEHP were sort of surprised when I told them this would happen, they seemed to think that if you had SEHP ALL your bills would be paid.  They never thought about people losing jobs, losing insurance coverage, etc.

The analysis should start with Ahlborn.  Ahlborn tells us that Medicaid can not claim repayment from any portion of a settlement not apportioned to medical payments.  Clearly, the settlement in this case has no component of medical bills because the medical bill claim was that of the parents, and the statute of limitations for the parents claim (and therefore Medicaid's derivative claim) had run before the suit was filed.  The only possible argument that Medicaid could make would be to argue that the parents "assigned" the right of collection to Medicaid upon the child's receipt of Medicaid benefits under 108A-57.  As is noted in a recent publication by John Saxon at the UNC School of Government:

It is clear that both statutes involve the recovery of Medicaid payments from third parties who are liable to Medicaid beneficiaries. G.S. 108A-57, however, uses the term "subrogation" to define the state Medicaid agency's rights against third parties while G.S. 108A-59 defines the State's right as one arising by virtue of "assignment." Subrogation and assignment, though, are distinct legal concepts. So, it is not entirely clear whether the State's claim against a third party is a claim based on subrogation or a claim based on assignment, whether the State may assert a claim based on subrogation and assignment, whether the State must elect to pursue its claim based on subrogation or assignment, and whether the scope of the State's rights under G.S. 108A-59 is coextensive with, broader than, or narrower than the scope of its right of subrogation under G.S. 108A-57. Nor is it clear whether the "pro rata" and "one-third cap" provisions of G.S. 108A-57 apply if the State's claim is based on an assignment under G.S. 108A-59 rather than subrogation under G.S. 108A-57.

So at the outset, we have the argument that Medicaid has NO lien or right of subrogation pursuant to Ahlborn.  The Ezell case, of course, is directly contradictory to this, with Judge Steelman's dissent at the Court of Appeals (adopted per curiam by NCSC)saying:

Notwithstanding any other provisions of the law, to the extent of payments under this Part, the State, or the county providing medical assistance benefits, shall be subrogated to all rights of recovery, contractual or otherwise, of the beneficiary of this assistance, or of the beneficiary's personal representative, heirs, or the administrator or executor of the estate, against any person. . . .

N.C. Gen. Stat. § 108A-57(a) (2005) (emphasis added).

The above language contemplates a broad right of subrogation, which is indicated by the reference to "all rights of recovery." Subrogation is not limited to tort recovery, as the statute expressly covers contractual rights or "otherwise." See State v. Shade, 115 N.C. 757, 759, 20 S.E. 537, 537 (1894) (noting that when the words "or otherwise," follows an explicit example in a statute, the legislature intends to include every other manner of fulfilling the purpose of the statute, for example here, recovery, no matter what might be the attendant circumstances). The causation language discussed by the majority is from the portion of the statute dealing with the duty of a plaintiff's attorney to distribute settlement proceeds to DMA, not from the portion of the statute defining the scope of DMA's right of subrogation, which is set forth verbatim above.

The next matter to address is the lien of the State Employee's Health Plan.   Of course, the SEHP lien will attach to the proceeds regardless of whether they are for medical bills or not:

§ 135-40.13A. Liability of third person; right of subrogation; right of first recovery.

(a) Whenever the Plan pays benefits for hospital, surgical, medical, or prescription drug expenses, with respect to any Plan member, the Plan shall be subrogated, to the extent of any payments under the Plan, to all of the Plan member's rights of recovery against liable third parties, regardless of the entity or individual from whom recovery may be due.

Though, one might argue that the logic of Ahlborn would apply and SEHP would not have a lien on the minor's damages (though it seems the statute allows the lien to attach to any proceeds).

The Plan's lien language gives SEHP the "right of first recovery" which would seemingly place SEHP in a higher priority than Medicaid, though Medicaid could argue that because they are federally funded, the state law would be preempted.

The Plan has the right to first recovery on any amounts so recovered, whether by the Plan or the Plan member, and whether recovered by litigation, arbitration, mediation, settlement, or otherwise.

The Plan's subrogation right is limited to recovering no more than 50% of the net settlement after "reasonable" attorney fees and costs (presumed to be 1/3) have been paid.

There is currently no guidance on how SEHP would "compete" with Medicaid if both have valid liens.  SEHP told me during our meeting that they were "working with the AG's office and Medicaid" on a way to handle this type of situation.  My best guess is that if both liens are valid, Medicaid and SEHP would devise some sort of pro-rata sharing.

SEHP and Medical Liens
SEHP claims to have priority over all Medical Provider liens.  Thus, because SEHP's lien formula is almost exactly the same as the Medical Provider lien formula, if SEHP's lien is equal to 50% of the NET settlement (after reasonable collection costs) then the Medical providers would not be entitled to any payment under the statute (though their balances would still be owed by the client).

If SEHP's lien was LESS than 50% of the NET (after reasonable costs of collection) then the question would first be to determine if there is a valid Medicaid lien.  If there is a valid Medicaid lien, AND Medicaid does NOT have to share with SEHP, then the Medicaid and Medical provider liens would be prorated up to 1/3 of the settlement (for Medicaid) or 50% of the net after Attorney Fees (for Medical providers).

Finally, you have medical liens under NCGS 44-49 and 44-50. Medicaid must share "pro-rata" with any unpaid medical providers pursuant to the requirements of:

§ 108A-57. Subrogation rights: withholding of information a misdemeanor

(a)  . . . Any attorney retained by the beneficiary of the assistance shall, out of the proceeds obtained on behalf of the beneficiary by settlement with, judgment against, or otherwise from a third party by reason of injury or death, distribute to the Department the amount of assistance paid by the Department on behalf of or to the beneficiary, as prorated with the claims of all others having medical subrogation rights or medical liens against the amount received or recovered, but the amount paid to the Department shall not exceed one-third of the gross amount obtained or recovered. (emphasis added)

This was discussed in the previous section.  Further, SEHP claims that they do NOT pro-rate with medical providers within the 50% of Net after attorney fees limitation.

Thus, I see two scenarios that could result from your case:

1)  Medicaid Valid, SEHP Valid, Medical Liens Valid
In this scenario Medicaid and SEHP would first need to determine if one or the other had priority in payment or if they prorate within the 1/3 limitation set by medicaid.  If SEHP has first priority, then the question would be does Medicaid get 1/3 of what is left after SEHP is paid or are they limited to no more than 1/3 of the total settlement minus what SEHP has been paid.  Medical providers would receive the remainder, pro-rated with Medicaid up to the 1/3 limit of medicaid or the 50% after attorney fees of Medical Provider liens.
2.  Medicaid INVALID, SEHP Valid, Medical Liens Valid
If our courts apply Ahlborn as written, then Medicaid should have no lien on the minor child's pain and suffering or future medicals recovery.  Then SEHP would recover it's full lien, up to 50% of the net after "reasonable costs of collection" and then Medical providers would share among themselves, pro-rata, up to 50% of the net after attorney fees. (Which is essentially the same 1/3 that SEHP claims).  Medical providers could argue that their share should be 50% of the NEt AFTER SEHP is paid, but I don't see any real basis for that argument.
I think that you will probably need to litigate this matter.  In that regard, you need to give Medicaid notice of all hearings.  My guess is that you would make these arguments at the minor settlement hearing and that Medicaid (AG) would need to participate.

If you have not read my posts on these issue on my Blog, you might want to check it out: Ahlborn Resources
Chris Nichols 1.800.906.5984

Durham Teen Killed in Wilmington, NC

Deputies Kill Unarmed Student

In a departure for NC Trial Law Blog, I am posting on a recent criminal case from Wilmington, NC.  The story has been heavily covered in the news, but because it concerns a family friend, I am covering the situation.

On Friday night, December 1, 2006, Wilmington, NC law enforcement agents from the New Hanover Sheriff's Department and the University of North Carolina at Wilmington attempted to serve an arrest warrant on Peyton Strickland, Age 18.  The officers allegedly thought that serving the warrant on the community college student might pose a danger, so they brought in a heavily armed and armored "S.W.A.T" team.

The details are not completely clear at this point, but it appears that the deputies attempted to gain entry to the home by force, and shots were fired by the deputies.  At least five shots were fired by the deputies, and according to the medical examiner's initial findings, the bullet that struck Peyton Stricklend in the head, killing him, entered in a sideways fashion, indicating that it had passed through the door of the small ranch house.  Peyton died a short time later.  He was unarmed and attempting to answer the door when he was shot.  Deputies also shot and killed his pet dog, Blaze.

The Raleigh News & Observer story can be read here.

Investigation Underway

The case is being investigated by District Attorney Ben David and the SBI.  The details of the investigation are supposed to be released next week.  Currently, the deputies are on standard administrative leave and have not been charged with any crimes.

Many Questions to Be Answered

The details that have been released at this time are, quite frankly, shocking to me.  Of course, we need to see the entire report and investigation before making final conclusions about what happened, but if the facts that have been released are any indication of what happened that night, law enforcment in Wilmington have a lot of explaining to do.

Some questions to be answered:

1)  Did the law enforcment officials who shot Peyton even know who was behind the door?

2)  What triggered the initial firing of the weapons?

3)  Was the amount of force used by the deputies necessary to serve an arrest warrant on an 18 year old college student?  Did the deputies attempt to contact the people in the house before they entered, guns blazing?

4)  Did the deputies even knock on the door before they attempted forced entry?  Did they say anything before attempting to enter?

5)  According to the public records from the entry to the home, the SBI recovered at least seven shell casings from the scene of the shooting.  Did the deputies really fire seven bullets into a closed door, not knowing who, or what stood behind that door?

Law Enforcement Leaks?

The news of Peyton's tragic death has created quite a stir in the Blogosphere.  The local newspaper, the Wilmington Star, has hundreds of posts to their disussion forum on the topic of the death.  In the posts, several posters claim to be in law enforcement and have "leaked" information which appears to justify the shooting and the amount of force used.  The posts attempt to malign Peyton Strickland and the occupants of the house, painting them as trouble makers and hinting that "the truth" will justify the actions of the officers.  Of course, on the Internet, anyone can post and claim to be "on the inside" so we may never know the source of the posts, but if they are, in fact, from "inside" the law enforcement community, clearly this is a disturbing trend and an attempt to interfere with the investigation.


I've known Peyton and his family for thirteen years.  I knew Peyton to be a great kid, talented, funny, and a loved member of a fantastic and supportive family.  Of course, he was 18, and 18 year olds will do dumb things as part of growing up (I know that I did), but Peyton was not a thug.  I know that law enforcement can not know all of the intimate details of a person's life before they ever meet them, but they did know that Peyton was a young college student, accused of stealing a video game system, with no criminal convictions.  I know that I'm not exactly neutral in this, but given the facts that I have read, the entire way this warrant was executed seems to be a disaster of epic proportions and possibly criminal.  This situation also reflects on the general state of affairs in our country where the fine line between public safety and public liberty is teetering out of balance.

My thoughts and prayers go out to all involved in this tragedy, and I am confident that District Attorney Ben David will get to the truth.

Chris Nichols

Nichols Law Firm 1.800.906.5984