JUANITA CHRISTINE PAULSELL, AS CURATOR OF THE INTERDICT PATRICIA JOLYNN PAULSELL-LATHROP
STATE OF LOUISIANA, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, MICHAEL A. LAVIOLETTE, ABC HELMET DISTRIBUTING COMPANY, DEF LABELING COMPANY, GHI HELMET MANUFACTURING COMPANY, AND XYZ INSURANCE COMPANY
Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana. Docket Number 544,152. Honorable William A. Morvant, Judge.
Nelson W. Wagar, III, Sarah Ney, Metairie, LA, Ronnie G. Penton, Bogalusa, LA, Counsel for Plaintiff-Appellant, Juanita Christine Paulsell, as curator for Patricia Jolynn Paulsell-Lathrop.
Weldon John Hill, II, Neal R. Elliott, Jr., Baton Rouge, LA, Counsel for Intervenor-Appellee, State of Louisiana, through the Department of Health and Hospitals/Medicaid Program.
James D. " Buddy" Caldwell, Attorney General, John Elliott Baker, Irving H. Koch, Special Assistants Attorney General, Covington, LA, Counsel for Defendants-Appellees, State of Louisiana, through the Department of Transportation and Development and the Office of Risk Management.
BEFORE: GUIDRY, THERIOT, AND DRAKE, JJ.
[2014 0567 La.App. 1 Cir 2] GUIDRY, J.
Juanita Christine Paulsell, the curatrix of the interdicted plaintiff, Patricia Jolynn Paulsell-Lathrop, comes before this court to appeal a summary judgment holding her personally liable to reimburse the Louisiana Department of Health and Hospitals -- Medicaid Program (DHH) for a portion of the Medicaid funds expended for medical treatment of injuries Patricia sustained in a motorcycle accident that occurred on June 13, 2005.
On October 8, 2013, the DHH filed a motion seeking summary judgment in its favor to hold Ms. Paulsell personally liable pursuant to La. R.S. 46:446(B), for reimbursement of medical assistance payments paid on behalf of Patricia from June 13, 2005 through December 8, 2008, in the amount of $69,131.92. In support of the motion, the DHH attached the affidavit of Jackie Porta, who in her capacity as section chief in charge of the Medicaid Recovery Unit, attested in part that: (1) Patricia has been a Louisiana Medicaid recipient since September 1, 2005; (2) DHH was never served with Patricia's petition for damages relative to the June 13, 2005 accident; (3) DHH was never provided with 30 days notice prior to the December 11, 2008 settlement of Patricia's claims against the Louisiana Department of Transportation and Development (DOTD); (4) the first " notice" the DHH received of Patricia's lawsuit, and settlement of the same, was on April 14, 2011;  and (5) Medicaid paid $69,131.92 in medical assistance payments on behalf [2014 0567 La.App. 1 Cir 3] of Patricia relative to the injuries Patricia sustained in the June 13, 2005 accident. Following a hearing, the trial court granted summary judgment in favor of the DHH and against Ms. Paulsell, in a judgment signed January 6, 2014, which Ms. Paulsell devolutively appeals herein.
At issue in this appeal is the application of La. R.S. 46:446(B), which at the time of the summary judgment hearing, provided:
B. Any person or his spouse, representative, or dependent who files suit for the recovery of damages or compensation as the result of an injury, illness, or death for which assistance payments of medical expenses in whole or in part have been paid by the Department of Health and Hospitals, for which the department has an obligation to pay therefor, shall at the time suit is filed cause a copy of the petition to be served on the department, in the manner prescribed by Article 1313 of the Louisiana Code of Civil Procedure. Such person filing suit shall be responsible to the department to the extent of the medical payments or assistance received, interest, and attorney fees if he fails to have service made upon the department. Such person shall also be responsible to the department if he compromises his claim without giving the department written notice at least thirty days before the compromise is affected. This written notice shall include the name and date of birth of all injured or ill recipients and the name and address of the party or parties potentially liable for damages or compensation. [Emphasis added.]
At the hearing on the DHH's motion for summary judgment, Ms. Paulsell argued, for the first time, that there was no proof that she knew that any of [2014 0567 La.App. 1 Cir 4] Patricia's medical treatment had been covered by medical assistance payments from Medicaid. Specifically, counsel for Ms. Paulsell presented the following argument in opposition to the DHH's motion for summary judgment:
[T]here is no affidavit or any supporting testimony that shows that my client had any notice that there was any claim made ... by Medicaid in this case for the $69,000 at the ...