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    "judges": [
      "Judges ELMORE and GEER concur."
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    "parties": [
      "STATE HEALTH PLAN FOR TEACHERS AND STATE EMPLOYEES, Plaintiff v. JENNIFER BARNETT and EUGENE W. ELLISON, Defendants"
    ],
    "opinions": [
      {
        "text": "CALABRIA, Judge.\nEugene W. Ellison (\u201cEllison\u201d) appeals the trial court\u2019s order granting summary judgment in favor of The State Health Plan for Teachers and State Employees (\u201cState Health Plan\u201d or \u201cplaintiff\u2019). We affirm.\nI. Background\nOn 3 September 2007, Jennifer Barnett (\u201cBarnett\u201d) sustained injuries in an automobile accident caused by a third party. Plaintiff provided Barnett, a State Health Plan member, with $73,075.43 in benefits for the treatment of her injuries. Ellison, an attorney, represented Barnett and three other individuals who were also riding in the vehicle with Barnett in their personal injury claims against the third-party driver. On 24 October 2007, the claims of all four of Ellison\u2019s clients were collectively settled for $100,000.00. Barnett received $70,000.00 in the settlement, minus $14,000.00 in attorney\u2019s fees, $9,386.50 in medical expenses, and $222.98 in rental car expenses. Thus, Ellison ultimately disbursed $43,390.52 to Barnett. Upon receipt of those funds, Barnett executed a \u201cSummary of Disbursements\u201d which puiported to \u201creleas [e] the Law Office of Eugene W. Ellison from any further obligation as to the medical bills or liens from any insurance providers.\u201d Ellison informed Barnett that plaintiff had a lien on her settlement funds, but she directed him not to disburse any proceeds to it.\nPlaintiff sent Ellison and Barnett multiple letters requesting satisfaction of the amount owed to plaintiff pursuant to plaintiff\u2019s right of subrogation under N.C. Gen. Stat. \u00a7 135-45.15. However, neither party disbursed any settlement proceeds to plaintiff.\nOn 30 August 2010, plaintiff initiated an action against Barnett and Ellison in McDowell County Superior Court seeking to recover $28,000.00 in satisfaction of its lien. Plaintiff filed a motion for summary judgment on 20 October 2011. On 2 April 2012, Barnett filed a voluntary petition for Chapter 13 bankruptcy and the proceedings against her were automatically stayed. On 15 May 2012, the trial court granted plaintiff\u2019s summary judgment motion and ordered Ellison to reimburse plaintiff in the amount of $28,000.00. Ellison appeals.\nII. Summary Judgment\nEllison argues that the trial court erred by granting plaintiff\u2019s motion for summary judgment. Specifically, he contends that N.C. Gen. Stat. \u00a7 135-45.15 does not authorize the recovery of settlement proceeds directly from an attorney who represents a State Health Plan member in a personal injury action. We disagree.\n\u201cOur standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows that \u2018there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u2019 \u201d In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008)(quoting Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007)). N.C. Gen. Stat. \u00a7 135-45.15 provides that\n(a) The [State Health] Plan shall have the right of subrogation upon all of the Plan member\u2019s right to recover from a liable third party for payment made under the Plan, for all medical expenses, including provider, hospital, surgical, or prescription drug expenses, to the extent those payments are related to an injury caused by a liable third party. The Plan member shall do nothing to prejudice these rights. 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.\n(d) In no event shall the Plan\u2019s lien exceed fifty percent (50%) of the total damages recovered by the Plan member, exclusive of the Plan member\u2019s reasonable costs of collection as determined by the Plan in the Plan\u2019s sole discretion. ... Notice of the Plan\u2019s lien or right to recovery shall be presumed when a Plan member is represented by an attorney, and the attorney shall disburse proceeds pursuant to this section.\nN.C. Gen. Stat. \u00a7 135-45.15 (2009). Thus, under this statute, the State Health Plan is authorized to recover up to one-half of the total damages, less attorney\u2019s fees, recovered by a Plan member from a third party. Moreover, the statute explicitly requires an attorney representing a Plan member to \u201cdisburse proceeds pursuant to this section.\u201d Id. The question before this Court is whether Ellison\u2019s failure to do so in the instant case made him liable for satisfying plaintiff\u2019s hen against Barnett under the statute.\n\u201cIssues of statutory construction axe questions of law, reviewed de novo on appeal.\u201d McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590, 592 (2010). Our appellate courts have not previously interpreted N.C. Gen. Stat. \u00a7 135-45.15. However, there are several cases which have interpreted an analogous statute, N.C. Gen. Stat. \u00a7 44-50.\nN.C. Gen. Stat. \u00a7 44-50 requires any person who receives settlement funds, including an attorney, to \u201cretain out of any recovery or any compensation ... received ... a sufficient amount to pay the just and bona fide claims for any drugs, medical supplies, ambulance services, services rendered by any physician, dentist, nurse, or hospital, or hospital attention or services, after having received notice of those claims.\u201d N.C. Gen. Stat. \u00a7 44-50 (2011). Thus, this statute places an affirmative duty on an attorney for an injured party to retain the full amount of a medical provider\u2019s lien before disbursing settlement proceeds. Our Supreme Court has acknowledged that an attorney who violates this duty is subject to legal liability for the amount of the lien under the statute. See N.C. Baptist Hospitals, Inc. v. Mitchell, 323 N.C. 528, 532, 374 S.E.2d 844, 846 (1988)(agreeing with the defendant\u2019s argument that \u201cN.C.G.S. \u00a7 44-50 provides the only mechanism by which to obtain funds from an attorney who has received them for a client in satisfaction of a personal injury claim.\u201d); see also IHangle Park Chiropractic v. Battaglia, 139 N.C. App. 201, 205, 532 S.E.2d 833, 836 (2000)(permitting medical provider to seek enforcement of its lien against an injured party\u2019s attorney using N.C. Gen. Stat. \u00a7 44-50 where the attorney was on notice of the lien but chose to pay the entire settlement amount directly to his client.).\nThe plain language of N.C. Gen. Stat. \u00a7 135-45.15 similarly places a duty upon an injured party\u2019s attorney to direct settlement funds recovered by an injured State Health Plan member to plaintiff in satisfaction of its statutory hen. By establishing this duty, the statute necessarily also creates a cause of action by which the State Health Plan may enforce its lien under the statute against an attorney who violates its requirements by failing to disburse his Ghent\u2019s settlement proceeds in accordance with the statute. See Mitchell, 323 N.C. at 532, 374 S.E.2d at 846. Since it is undisputed that Elhson failed to comply with the requirements of N.C. Gen. Stat. \u00a7 135-45.15 in the instant case, the trial court properly concluded that he was hable for the amount of plaintiff\u2019s lien.\nElhson additionally claims that his failure to comply with the requirements of N.C. Gen. Stat. \u00a7 135-45.15 should be excused because he only violated the statute based upon Barnett\u2019s instructions. However, he cites no authority for the proposition that an attorney may violate a statutory duty based upon his client\u2019s instructions. Instead, he cites North Carolina State Bar Ethics Opinion RPC 69, which states that \u201c[a] lawyer is generally obliged ... to disburse settlement proceeds in accordance with his client\u2019s instructions. The only exception to this rule arises when the medical provider has managed to perfect a valid physician\u2019s lien.\u201d North Carolina State Bar RPC 69 (October 20,1989). This opinion by the State Bar does not excuse Ellison\u2019s failure to disburse any of Barnett\u2019s settlement funds to plaintiff. Instead, the opinion clearly acknowledges that, regardless of a client\u2019s instructions, an attorney cannot ignore a valid statutory lien, a physician\u2019s lien under N.C. Gen. Stat. \u00a7 44-50. An attorney likewise cannot ignore a valid State Health Plan lien under N.C. Gen. Stat. \u00a7 135-45.15 when disbursing settlement funds, regardless of his client\u2019s wishes. Accordingly, it is immaterial to the determination of Ellison\u2019s liability that Barnett may have directed him to disburse all of her settlement funds directly to her. Ultimately, the trial court correctly concluded that Ellison was hable for his failure to disburse settlement funds to plaintiff pursuant to N.C. Gen. Stat. \u00a7 135-45.15, and thus properly granted summary judgment to plaintiff. This argument is overruled.\nIII. Mitigation of Damages\nEllison also argues that the trial court erred by granting summary judgment to plaintiff because of the possibility that plaintiff failed to mitigate its damages by filing a proof of claim against Barnett in her bankruptcy case. We disagree.\nThe record does not reflect that EUison raised this issue before the trial court and therefore this argument is not preserved for appeal. See Westminister Homes, Inc. v. Town of Cary Zoning Bd. of Adjust., 354 N.C. 298, 309, 554 S.E.2d 634, 641 (2001)(\u201c[I]ssues and theories of a case not raised below will not be considered on appeal.\u201d). Moreover, even assuming, arguendo, that Ellison did preserve this issue, there is no evidence in the record which establishes whether or not plaintiff filed a claim in Barnett\u2019s bankruptcy proceeding. Ellison\u2019s mere speculation that plaintiff may not have filed such a bankruptcy claim is insufficient to create a genuine issue of material fact precluding summary judgment. See Johnson v. Scott, 137 N.C. App. 534, 537, 528 S.E.2d 402, 404 (2000) (\u201c[Ojnce the moving party presents an adequately supported [summary judgment] motion, the opposing party must come forward with specific facts (not mere allegations or speculation) that controvert the facts set forth in the movant\u2019s evidentiary forecast.\u201d). This argument is overruled.\nIV. Conclusion\nPursuant to N.C. Gen. Stat. \u00a7 135-45.15 (now N.C. Gen. Stat. \u00a7 135-48.37), the State Health Plan has the right to first recovery of up to 50% of any amounts recovered by a Plan member for injuries which were inflicted by a third party and for which the State Health Plan provided treatment benefits. The statute places an affirmative duty on the attorney representing the State Health Plan member to use any settlement proceeds to first satisfy the State Health Plan\u2019s lien, and failure to comply with the statute subjects the attorney to liability for the amount of the lien. Since Ellison\u2019s failure to comply with N.C! Gen. Stat. \u00a7 135-45.15 is undisputed in the instant case, the trial court properly granted summary judgment to plaintiff. The trial court\u2019s order is affirmed.\nAffirmed.\nJudges ELMORE and GEER concur.\n. This amount represented 50% of Barnett\u2019s total recovery after the payment of attorney\u2019s fees.\n. This statute has been recodified as N.C. Gen. Stat. \u00a7 135-48.37 as of 1 January 2012. See 2011 N.C. Sess. Law 85.",
        "type": "majority",
        "author": "CALABRIA, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Special Deputy Attorney General Heather H. Freeman, for plaintiff-appellee.",
      "Gonstangy, Brooks & Smith, LLP, by Michelle Rippon, for defendant-appellant Eugene W. Ellison."
    ],
    "corrections": "",
    "head_matter": "STATE HEALTH PLAN FOR TEACHERS AND STATE EMPLOYEES, Plaintiff v. JENNIFER BARNETT and EUGENE W. ELLISON, Defendants\nNo. COA12-999\nFiled 7 May 2013\n1. Liens \u2014 State Health Plan \u2014 settlement from auto accident\nThe trial court erred by granting plaintiffs motion for summary judgment in a case arising from an automobile accident where there was a settlement and plaintiff sought a lien on the proceeds. The plain language of N.C.G.S. \u00a7 135-45.15 places a duty upon an injured party\u2019s attorney to direct settlement funds recovered by an injured State Health Plan member to plaintiff in satisfaction of its statutory lien. An attorney cannot ignore a valid State Health Plan lien when disbursing settlement funds, regardless of his client\u2019s wishes.\n2. Appeal and Error \u2014 preservation of issues \u2014 argument not raised below \u2014 not supported by evidence\nThe trial court did not err by granting summary judgment to plaintiff in an action arising from an automobile accident and a lien on settlement proceeds sought by plaintiff where defendant Ellison argued the possibility that plaintiff failed to mitigate its damages by filing a proof of claim against defendant Barnett in her bankruptcy case. The record did not reflect that Ellison raised this issue before the trial court, and, even assuming that the issue was preserved, there was no evidence in the record which established whether or not plaintiff filed a claim in Barnett\u2019s bankruptcy proceeding.\nAppeal by defendant Eugene W. Ellison from order entered 15 May 2012 by Judge Laura J. Bridges in McDowell County Superior Court. Heard in the Court of Appeals 9 January 2013.\nAttorney General Roy Cooper, by Special Deputy Attorney General Heather H. Freeman, for plaintiff-appellee.\nGonstangy, Brooks & Smith, LLP, by Michelle Rippon, for defendant-appellant Eugene W. Ellison."
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