IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA20-233

Filed: 17 November 2020

Guilford County, No. 17 CVS 4557

NYAMEDZE QUAICOE, by and through his Guardian ad Litem, SALLY A.

LAWING, FAFANYO ASISEH and OBED QUAICOE, Plaintiffs

v.

THE MOSES H. CONE MEMORIAL HOSPITAL OPERATING CORPORATION 

d/b/a MOSES CONE HEALTH SYSTEM, d/b/a WOMEN’S HOSPITAL; JODY 

BOVARD STUCKERT M.D., PIEDMONT HEALTHCARE FOR WOMEN, P.A., d/b/a 

GREENSBORO OB/GYN ASSOCIATES, Defendants

Appeal by Plaintiffs from an Order entered 27 September 2019 by Judge David 

L. Hall in Guilford County Superior Court. Heard in the Court of Appeals 8 

September 2020.

The Law Offices of Wade Byrd, P.A., by Wade E. Byrd, and Nichols Zauzig 

Sandler, PC, by Charles J. Zauzig, III, and Melissa G. Ray, pro hac vice, 

attorneys for plaintiffs-appellants.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Tamara 

Mary Van Pala, for State Health Plan.

HAMPSON, Judge.

Factual and Procedural Background

Nyamedze Quaicoe (Minor Plaintiff), by and through his Guardian ad Litem, 

Sally A. Lawing, and his parents, Fafanyo Asiseh and Obed Quaicoe, (collectively, 

Plaintiffs) appeal from an Order entered 27 September 2019 denying Plaintiffs’ 
QUAICOE V. MOSES H. CONE MEM’L HOSP. OPERATING CORP.

Opinion of the Court

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Motion1 requesting the trial court reduce a North Carolina State Health Plan (SHP) 

lien on monetary proceeds from a minor settlement. The Record before us shows the 

following: 

In April 2017, Plaintiffs filed a Complaint alleging medical malpractice against 

the Moses H. Cone Memorial Hospital Operating Corporation d/b/a Moses Cone 

Health System d/b/a Women’s Hospital, Jody Bovard Stuckert M.D., Piedmont 

Healthcare for Women, P.A. d/b/a Greensboro OB/GYN Associates (collectively, 

Defendants) for serious and permanent injuries Minor Plaintiff sustained during 

birth. At the time of the incident giving rise to Plaintiffs’ medical malpractice claim, 

Plaintiffs had health insurance coverage through the SHP along with Medicaid. The 

medical malpractice action was later settled by consent of both parties, approved by 

the trial court, and placed under seal on 20 May 2019. A trust was created for the 

disbursement of settlement proceeds for the Minor Plaintiff.

During the course of settlement negotiations, on 25 March 2019, Plaintiffs filed 

their Motion seeking to have the trial court reduce the monetary amount of liens

imposed on the settlement by both SHP and Medicaid. Plaintiffs subsequently 

secured a voluntary reduction in the Medicaid lien. SHP, however, objected to any 

reduction of its lien against the settlement proceeds and moved to dismiss Plaintiffs’

Motion for lack of subject-matter jurisdiction and for failing to state a claim for which 

 

1 Plaintiffs’ Motion is captioned “Motion to Reduce Medicaid Lien”; however, Plaintiffs’ Motion 

requested the trial court reduce both the Medicaid lien and the SHP lien. 
QUAICOE V. MOSES H. CONE MEM’L HOSP. OPERATING CORP.

Opinion of the Court

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relief can be granted under Rules 12(b)(1) and 12(b)(6) of the North Carolina Rules of 

Civil Procedure. SHP also filed a Notice of Limited Appearance with the trial court, 

explaining its status as a nonparty but asserting it would appear to argue its Motion 

to Dismiss.

2

On 27 September 2019, the trial court entered a written Order denying 

Plaintiffs’ Motion to Reduce State Health Plan Lien (Order). In denying Plaintiffs’

Motion, the trial court emphasized “there is no case law or statutory authority for an 

equitable reduction or waiver of the Plan’s lien under N.C. [Gen. Stat.] §135-48.37.” 

Accordingly, the trial court concluded: “This court lacks jurisdiction to reduce or 

modify the Plan’s lien and denies Plaintiffs’ Motion. Plaintiffs have failed to state a 

claim upon which relief may be granted.” Plaintiffs filed Notice of Appeal on 22 

October 2019. 

Issue

The sole issue before this Court on appeal is whether the trial court erred in 

denying Plaintiffs’ Motion for lack of subject-matter jurisdiction.

Analysis

I. Subject-Matter Jurisdiction

 

2 The State Health Plan initially moved to intervene in Plaintiffs’ case; however, its Motion to 

Intervene was subsequently withdrawn.
QUAICOE V. MOSES H. CONE MEM’L HOSP. OPERATING CORP.

Opinion of the Court

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“Subject matter jurisdiction refers to the power of the court to deal with the 

kind of action in question[ ]” and “is conferred upon the courts by either the North 

Carolina Constitution or by statute.” Harris v. Pembaur, 84 N.C. App. 666, 667, 353 

S.E.2d 673, 675 (1987). “A court’s lack of subject matter jurisdiction is not waivable 

and can be raised at any time, including on appeal.” Banks v. Hunter, 251 N.C. App. 

528, 531, 796 S.E.2d 361, 365 (2017) (citations omitted). “Whether a trial court has 

subject-matter jurisdiction is a question of law, reviewed de novo on appeal.” McKoy 

v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590, 592 (2010) (citation omitted). 

The North Carolina State Health Plan is codified at N.C. Gen. Stat. §§ 135-

48.1 et seq., and was created by the General Assembly “exclusively for the benefit of 

eligible employees, eligible retired employees, and certain of their eligible 

dependents, which will pay benefits in accordance with the terms of this Article.” 

N.C. Gen. Stat. § 135-48.2(a) (2019). The General Assembly delegated administration 

and operation of the SHP to the State Treasurer, id. § 135-48.30, and broadly directed 

“[t]he Plan shall administer one or more group health plans that are comprehensive 

in coverage.” Id. § 135-48.2(a).

Section 135-48.37, titled “Liability of third person; right of subrogation; right 

of first recovery,” provides: 

The Plan shall have the right of subrogation upon all of the Plan 

member’s 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 
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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. Notwithstanding any other provision of 

law to the contrary, the recovery limitation set forth in G.S. 28A18-2 shall not apply to the Plan’s right of subrogation of Plan 

members.

N.C. Gen. Stat. § 135-48.37(a). Subsection (d) limits, “[i]n no event shall the Plan’s 

lien exceed fifty percent (50%) of the total damages recovered by the Plan member, 

exclusive of the Plan member’s reasonable costs of collection as determined by the

Plan in the Plan’s sole discretion.” Id. § 135-48.37(d). A separate section—Section 

135-48.24—describes the administrative review process for claims brought under the 

SHP. Id. § 135-48.24. 

In part, Plaintiffs requested the trial court “hold a hearing pursuant to N.C. 

[Gen. Stat.] § 108A-57 and determine the appropriate amount of the lien.” In denying 

Plaintiffs’ Motion, the trial court correctly noted Section 108A-57 addresses Medicaid

liens and only provides recourse for the trial court to reconsider the amount of a

Medicaid lien, see N.C. Gen. Stat. § 108A-57(a2) (2019), and, instead, Section 135-

48.37 governs liens imposed under the SHP. N.C. Gen. Stat. § 135-48.37. SHP moved 

the trial court to dismiss Plaintiffs’ Motion under N.C.R. Civ. Pro. 12(b)(1) for lack of 

subject-matter jurisdiction. N.C. Gen. Stat. § 1A-1, Rule 12(b)(1) (2019). On appeal,
QUAICOE V. MOSES H. CONE MEM’L HOSP. OPERATING CORP.

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Plaintiffs contend the trial court had jurisdiction over Plaintiffs’ Motion based on the 

court’s general role in protecting the rights of minors and its inherent judicial power.

The State Health Plan, however, is a creature of statute, created by the 

General Assembly and administered by the State Treasurer pursuant to Sections 135-

48.1 et seq. In enacting Section 135-48.37, the General Assembly expressly provided 

“[t]he Plan has the right to first recovery on any amounts so recovered, whether by 

the Plan or the Plan member, and whether recovered by . . . settlement[.]” N.C. Gen. 

Stat. § 135-48.37(a). The SHP is not always entitled to recover a lien in full; the 

General Assembly limited liens imposed by the SHP under Section 135-48.37 so as 

not to exceed “fifty percent (50%) of the total damages recovered by the Plan member 

. . . .” Id. § 135-48.37(d); see State Health Plan for Teachers & State Emps. v. Barnett, 

227 N.C. App. 114, 116, 744 S.E.2d 473, 474 (2013) (“[T]he State Health Plan is 

authorized to recover up to one-half of the total damages, less attorney’s fees, 

recovered by a Plan member from a third party.”).

“Subject matter jurisdiction is conferred upon the courts by either the North 

Carolina Constitution or by statute.” Harris, 84 N.C. App. at 667, 353 S.E.2d at 675. 

Here, Plaintiffs have not pointed to any constitutional provision or general statute 

conferring jurisdiction on the courts of this State to reduce the monetary amount of

SHP liens imposed upon a settlement pursuant to N.C. Gen. Stat. § 135-48.37. 

Instead, Plaintiffs cite a string of cases from our Supreme Court and argue this Court 
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has equitable jurisdiction because of North Carolina courts’ strong interest in 

protecting the rights of minors. However, this Court has clarified: “the equity powers 

of neither the trial court nor this Court extend into areas which are expressly 

governed by statute.” Orange County ex rel. Byrd v. Byrd, 129 N.C. App. 818, 822, 

501 S.E.2d 109, 112 (1998); c.f. Dare Cnty. v. N.C. Dep’t of Ins., 207 N.C. App. 600, 

611, 701 S.E.2d 368, 376 (2010) (“[T]he extent to which the trial court had subject 

matter jurisdiction over Petitioners’ request for judicial review of the consent order 

depends upon whether the General Assembly has enacted any statutory provisions 

authorizing Petitioners to seek and obtain judicial review of the consent order.”). 

Here, there is no dispute SHP’s lien is expressly governed by Section 135-48.37. 

What Plaintiffs sought from the trial court, and what it now asks of this Court, is to 

reduce the amount of the SHP lien based on principles of equity. However, Section 

135-48.37 does not confer jurisdiction to review the amount of the SHP lien. Although 

we are sensitive to the facts underlying this case, we are constrained by the language 

of Section 135-48.37. Orange County ex rel. Byrd ̧ 129 N.C. App. at 822, 501 S.E.2d 

at 112 (“[W]e are not free to either ignore or amend legislative enactments because 

when the language of a statute is clear and unambiguous, the courts must give it its 

plain meaning.” (citing State ex rel. Utilities Commission v. Edmisten, 291 N.C. 451, 

465, 232 S.E.2d 184, 192 (1977))). Plaintiffs’ proper recourse is with the General 

Assembly as “the judiciary should avoid ingrafting upon a law something that has 
QUAICOE V. MOSES H. CONE MEM’L HOSP. OPERATING CORP.

Opinion of the Court

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been omitted which it believes ought to have been embraced.” Shaw v. U.S. Airways, 

Inc., 362 N.C. 457, 463, 665 S.E.2d 449, 453 (2008) (alterations, citations, and 

quotation marks omitted). Therefore, we conclude the trial court was correct in 

determining it lacked subject-matter jurisdiction over Plaintiffs’ Motion. 

Plaintiffs also argue the trial court misapplied North Carolina’s 

Administrative Procedure Act and erred in concluding Plaintiffs failed to state a 

claim upon which relief may be granted under N.C.R. Civ. P. 12(b)(6), which

determination Plaintiffs contend should be reviewed for abuse of discretion arguing

it was based on a misapprehension of the law. However, because we conclude the 

trial court was correct in determining it did not have subject-matter jurisdiction over 

Plaintiffs’ Motion, we do not reach Plaintiffs’ subsequent arguments.

Conclusion

Accordingly, for the foregoing reasons, the trial court’s Order is affirmed. 

AFFIRMED.

Chief Judge McGEE and Judge DIETZ concur.