Free Amended Complaint - District Court of California - California

Case 3:08-cv-00027-L-JMA

Document 15

Filed 05/30/2008

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Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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10 KATHLEEN VESTEVICH,
) Case No.: 3:08-cv-00027-L-JMA
)

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Plaintiff,

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vs.

) FIRST AMENDED COMPLAINT FOR ) DECLARATORY RELIEF
) )

14 UNITED STATES OF AMERICA; THE

15 SERVICES; CNI ADMINISTRATION
HEALTH AND HUMAN SERVICES,

CENTERS FOR MEDICARE AND MEDICAID
SERVICES, LLC; MICHAEL LEAVITT,

16 SECRETARY OF THE DEPARTMENT OF

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Defendants.

) ) ) ) ) ) ) ) ) )

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Plaintiff alleges as follows:
1.

Plaintiff is a competent adult and resident of the State of California.
Defendant, the United States of America, is a sovereign nation.
Defendant, Centers for Medicare and Medicaid Services ("CMS"), formerly

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2. 3.

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24 known as Health Care Financing Administration, is a division of the Department of Health and

25 Human Services, the governmental agency that administers the Medicare program.

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FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF

Case 3:08-cv-00027-L-JMA

Document 15

Filed 05/30/2008

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1 4. Defendant, CNI Administration Services, LLC, is a limited liability company
2 registered in the State of Oklahoma and doing business in California. It was awarded a

3 contract by CMS on October 2, 2006 as a national Medicare Secondary Payer Recovery

4 Contractor ("MSPRC") for all post-payment recoveries.
5 5. Defendant, Michael Leavitt, is the Secretary of the Department of Health and

6 Human Services, the federal agency responsible for administering the Medicare program. The
7 Secretary administers the Medicare program through CMS.

8 6. Jurisdiction over this action is conferred by Title XVIII of the Social Security Act

9 (The Medicare Program) and pursuant to the recovery provisions of the Medicare Secondary

10 Payer legislation, 42 U.S.c. §1395y(b)(2)(B)(ii), 42 C.F.R. §411.24(b) and/or the Federal
11 Claims Collection Act, 31 U.S.c. §3711, et. seq.
12 7. Venue is proper in this Court inasmuch as a substantial part of the events or

13 omissions giving rise to the claim occurred in this district, or a substantial part of the property

14 that is the subject of the action is located within this district.
15 8. On January 21, 2006, plaintiff's husband, James C. Vestevich, was critically

16 injured and later died after the motorcycle he was riding was struck by another vehicle.

17 9. Plaintiff settled with Lorenzo Villa, the driver of the vehicle that struck Dr.
18 Vestevich, for the Progressive Auto Insurance policy limits of $15,000 for the damages she

19 suffered as a result of her husband's death.
20 10. In addition, plaintiff had to pursue an underinsured motorist claim against USAA

21 Insurance, Dr. Vestevich's automobile insurance company. Plaintiff setted with USAA

22 Insurance for $285,000.
23 11. Following the settlements with Progressive Auto Insurance and with USAA

24 Insurance, plaintiff attempted numerous times to determine whether defendants would be
25 asserting a lien and/or claiming a right of recovery on the wrongful death settlement and, if so,

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FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF

Case 3:08-cv-00027-L-JMA

Document 15

Filed 05/30/2008

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1 that defendants waive any purported lien rights pursuant to Fitch v. Select Products Co. 36
2 Cal.4th 812, 819 (2005), and California Code of Civil Procedure sections 377.34 and 377.61.

3 12. Defendants ultimately asserted a lien in the amount of $83,109.42. However,

4 defendants have wholly failed and refused to respond to plaintiff's request that they waive

5 their lien rights - despite plaintiff's repeated requests over the past ten months to do so.
6 Defendants' failure to respond is precluding the distribution of the settlement proceeds to

7 plaintiff.
8 13. A declaratory judgment is necessary to determine whether defendants are

9 asserting a claim for recovery of any benefits paid, and if so, to expunge any purported lien of

10 defendants on the basis of law and equity.

11 WHEREFORE, plaintiff prays for declaratory judgment against defendants as follows:
12 1. That the Court declare the respective rights and duties of plaintiff and

13 defendants;
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3. 2.

That the Court declare, as a matter of law, defendants have no lien rights on the

wrongful death recovery obtained by plaintiff;
That plaintiff be awarded her costs, expenses and attorneys fees incurred

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4.

herein; and,

For such other and further relief as the Court deems just and proper.

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Dated: May 30, 2008

THE McCLELLAN LAW FIRM

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By: s/Robert J. Chambers, II
ROBERT J. CHAMBERS, II

Attorneys for Plaintiff rob(ãmcclellanlaw.com

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