2053 Woodbridge Avenue - Edison, NJ 08817

Friday, July 06, 2007

NJ Laws Newsletter E219 July 9, 2006

I hope you had an enjoyable 4th of July holiday. Many of our clients, Judges and Prosecutors see in the courtrooms year-round wearing my American Flag Ties. The runners at numerous charity races see my USA flag shorts. In the triathlon, my racing helmet is red , white and blue. On the 4th of July, we celebrate the USA. I remember 30 years ago celebrating the Bicentennial watching fireworks in Roosevelt Park in Edison. We continue to support our country. We purchased another supply of USA flag key chains. Stop in the office for a free USA flag key chain.
In this issue:
2. recent cases: Domestic violence dismissed where no purpose to harass
3. new webpages
4. Upcoming charity races - 7/8/2006 Belmar Five Mile Run 5 mile, 8:30am Belmar NJ

By Thomas D. Begley, Jr., Esquire

   On May 1, 2006, the United States Supreme Court decided a landmark case affecting the rights of injured parties.[1]  Heidi Ahlborn was involved in an automobile accident.  During the penance of her claim, Medicaid paid her medical bills in the amount of $215,645.30.  There were significant issues as to liability and the case settled out of court for $550,000.  Medicaid claimed the entire amount of its lien totaling $215,645.30. 
            The complaint was for past medical costs and other items, including pain and suffering, loss of earnings and working time, and permanent impairment of Heidi’s future earnings ability.  The settlement did not allocate between categories of damages.  However, as a part of the appeal process the parties stipulated that the settlement amounted to approximately one-sixth of the reasonable value of Ahlborn’s claim.
            The Arkansas Medicaid Agency sought repayment in the amount of $215,645.30.  Federal law[2] requires states to seek reimbursement for medical assistance to the extent of such legal liability of third parties.  An applicant applying for Medicaid must, as a condition of eligibility, assign to the State rights to collect for payment of medical care from any third party.  Any amount collected by the State under an assignment shall be retained by the state to reimburse it for Medicaid payments made on behalf of the recipient.  The remainder of such amount collected shall be paid to the recipient.
            The Supreme Court held that when the amount of the Medicaid lien exceeds the portion of the settlement representing medical costs, satisfaction of the State’s lien must be made on a pro rata basis.  Medicaid may not require payment out of proceeds meant to compensate the recipient for damages distinct from medical costs, such as pain and suffering, lost wages, and loss of future earnings.  The Court held that § 1396a(a)(25)(B)’s requirement that State’s “seek reimbursement for medical assistance to the extent of such legal liability” refers to the legal liability of third parties to pay for care and services available under the plan.  Here, because the defendant accepted liability for one-sixth of Ahlborn’s overall damages, Medicaid is entitled to only one-sixth of its Medicaid claim.

In many cases attorneys were reluctant to take claims where the entire settlement would likely to be paid to Medicaid. Based on the Ahlborn ruling, plaintiffs now have more incentive to file claims to compensate them for their injuries.

The case makes clear that there must be an allocation between medical expenses and other causes of action, such as pain and suffering and loss of wages. While the Court did not say so, the allocation should be reasonable.

Thomas D. Begley, Jr. and Kenneth Vercammen spoke at a program for the Institute for Continuing Legal Education on May 11 on the subject of Medicaid Planning After the Deficit Reduction Act of 2005.


2. recent cases: Domestic violence dismissed where no purpose to harass.
Silva v. Ramos, Appellate Division, A-2950-04T1, November 17, 2005, not approved for publication.
Final domestic violence restraining order against the defendant based on harassment reversed; after the defendant did not arrive on a scheduled date to retrieve personal property from the plaintiff ex-girlfriend's garage, the plaintiff placed the property outside; when the defendant arrived the next day, he saw that his property had been damaged by snow, banged on the doors and windows of the plaintiff's house, called her "a chicken" and asked her repeatedly to come outside, left a voice mail message for her stating "you want f...ing war, you've got it," smashed some of his damaged property with a sledgehammer, and called the police; the defendant correctly argues that he had no purpose to harass, and his actions therefore did not qualify as harassment under N.J.S.A. 2C:33-4c.

Appellate Division, A-367-04T3, November 30, 2005, not approved for publication. Facts-on-Call Order No. 18895.

Convictions on six summonses for violating a municipal ordinance that regulates the hours of operation for businesses affirmed; in the Municipal Court, a municipal employee, who was an administrative officer and the principal planner, testified that the defendants barber shop had operated after the hours permitted in the ordinance and that the defendant also had violated the Zoning Boards resolution that set the hours of operation for barber shops; the Municipal Court found the employee credible, and the Law Division deferred to the Municipal Courts credibility findings; contrary to the defendants argument on appeal, the evidence was sufficient to support the verdict.

In M.J. v. G.D., an UNPUBLISHED decision in 2006, the Appellate Division reverses a Family Court finding of domestic violence based upon the trial judge's misunderstanding of the evidence needed to prove a charge of harassment under NJSA 2C:33-4. The Appellate Division ruled that although the defendant's words were likely to cause annoyance or alarm, there was no evidence to suggest that he had such a purpose. Since the "purposeful" element had not been proved by a preponderance of the evidence, no restraining order should have been entered.


3. new webpages

Rule 1:7-1. Opening and Closing Statements in a Jury Trial

Undue Influence as Defense to Will or Power of Attorney


4. Upcoming charity races [more details at http://www.raceforum.com]

7/8/2006  Belmar Five Mile Run 5 mile, 8:30am Belmar NJ  732-571-2162 free food at Bar A after race and reduced price drinks
Ken V needs a ride from the East Brunswick area to Belmar

July 11 Tuesday night Raritan Valley Road Runners RVRR cross-country 5k summer series

Thank You! Thank You!

Thanks to all our clients who graciously referred their family, friends and associates to our agency. We build our firm on your positive comments. We couldn't do it without you!
Referrals are the lifeblood of any business, and there's no better source than you, our clients.


Thank you for reading our newsletter! God Bless America USA #1
Kenneth Vercammen, Esq.
2053 Woodbridge Ave.
Edison, NJ 08817
PHONE 732-572-0500 (Fax) 732-572-0030
website: www.njlaws.com

Speakers Bureau: The NJ State Bar Association established a community Speakers Bureau to provide educational programs to senior clubs, Unions and Middlesex County companies. During the past year, volunteer attorneys have provided Legal Rights Seminars to hundreds of seniors, business owners and their employees, unions, clubs and non-profit groups. If you are interested in having an attorney speak on Wills, Probate or Elder Law at an event, please call my office. These quality daytime educational programs will educate and even entertain. Clubs and companies are invited to schedule a free seminar during business hours.

"Celebrating more than 20 years of providing excellent service to clients 1985-2006" Former Prosecutor
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