In a case out of the District Court for the Eastern District of Pennsylvania, In Re Asbestos Products Liability Litigation v. General Electric Company, 2013 U.S. Dist. LEXIS 76346 (May 8, 2013), the parties had come to terms on settlement and the matter was completely ready for resolution. However, the Defendant, Buffalo Pumps (Defendant) refused to tender the agreed upon settlement due to the fact that the Plaintiff’s wife, Mrs. Taylor (Plaintiff’s wife), would not provide her SSN. The Defendant contended that this information was needed in order to comply with the MSP as well as any corresponding reporting obligations under MMSEA Section 111. This prompted the Plaintiff, Mr. Taylor (Plaintiff) to file a Motion to Enforce the Settlement Agreement.
In the motion, the Plaintiff contended that the reporting of this information is not required under the MSP because his wife’s claim was for loss of consortium only and would not implicate any past, present, or future Medicare-covered claims. The court noted that in order to resolve the issue set out in the Plaintiff’s motion it would need to determine whether the Defendant (or its liability insurer) would be obligated to report the wife’s consortium claim.
The Plaintiff argued that his wife’s consortium claim was not and could not be for any medical-related issues and further asserted that Connecticut law does not permit damages on behalf of the spouse of an injured party. The Defendant did not dispute this contention and the parties agreed that Connecticut law controlled the underlying case. Regardless, the court found that the Defendant’s liability insurer is considered an “applicable plan” and the Plaintiff’s wife is a “claimant” under MMSEA Section 111 regulations. Therefore, the court concluded that if the parties settled, the Defendant’s liability insurer must determine if the Plaintiff’s wife is entitled to Medicare benefits.
The case further noted that pursuant to the most recent User Guide, CMS has instructed that settlement information must be reported, even for a loss of consortium plaintiff, who makes no claim for medical injuries, but is still releasing medicals by virtue of the settlement language (See User Guide, Version 3.5, pgs. 6-15). Additionally, the Plaintiff’s wife’s SSN was deemed to be an essential term of the settlement; therefore the court could not enforce the Plaintiff’s Motion to Enforce Settlement.
This case is interesting in that it corresponds with and confirms prior case law on this issue, Hackley v. Garofano and Seger v. Tank Connection. In both of these cases, the facts were similar where the plaintiffs refused to provide their SSN and the Defendant refused to tender settlement due to MMSEA Section 111 reporting obligations. Both courts in these cases sided with the defendants and the courts compelled the plaintiffs to provide the SSNs.
This case, In Re Asbestos Products Liability Litigation, is the first case where we have seen a loss of consortium claim at issue as the argument for not providing the SSN. Although it would seem logical that CMS would not need the reporting of information where no claim for medical treatment or loss can be made under that particular state’s consortium laws, CMS has spoken to the fact that these claims still need to be reported.
If the Plaintiff’s wife in this case ends up being a Medicare beneficiary after the RRE queries her information, and the claim is reportable, the information will be for the most part rendered useless due to the fact that the Plaintiff’s wife has not made a claim for medicals. Therefore, Medicare would likely not seek to recover conditional payments related to her claim. Regardless, the court seems to have made the correct decision which is in line with CMS’ guidelines and their most recent User Guide requiring the reporting of loss of consortium claims.
RREs should keep this decision in mind and be reminded of two major takeaways:
1) Loss of consortium claims may be reportable under MMSEA Section 111 even if the claim does not make any claim for medicals; and
2) If a person is deemed to be a “claimant” under MMSEA Section 111 and he/she refuses to provide his/her SSN, the RRE will seemingly have the court system on its side to withhold settlement until the “claimant” provides their SSN so as to comply with MMSEA Section 111 and MSP regulations.