### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE May 2000 Session FAYE L. GREEN v. INNOVATIVE RECOVERY SERVICES, INC.

Appeal from the Chancery Court for Davidson County No. 99-1560-II Carol L. McCoy, Chancellor

No. M1999-02227-COA-R3-CV - Filed July 28, 2000

The attorney for a woman who had been injured in an auto accident claimed that his services entitled him to a portion of the subrogation interest asserte

d by TennCare aga

inst the settlement p

roceeds. The trial court di

smissed his claim. W

e affirm the tria

l court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded
B EN H. C ANTRELL , P.J., M.S., delivered the opinion of the court, in which W ILLIAM C. K OCH , J R
. and P ATRICIA J. C OTTRELL , JJ., joined. Robert L. Whitaker, Nashville, Tennessee, for the appellant, Faye L. Green. Rhonda M. Whitted, Nashville, Tennessee, for the appellee, Innovative Recovery Services, Inc. OPINION
I. Faye Green was injured in an auto accident. Her medical expenses, in the am ount o f $23,059, were paid by Access MedPLUS , a Ten nCare contractor. Ms. Green hired Robert L. Whitaker, an attorney with Bart Durham a nd Associates, to r

epresent her in a

suit against the other driver, Edward T. Shear, Jr. Mr. Whitaker filed suit on Ms. Green’s behalf, asking for damages of $340,000, but eventually settling for policy limits of $50,000.
Du ring the litigation, defendant Innovative Recovery Services, Inc (IRSI) infor med Mr

. Whitaker that it handled all s

ubrogation ma

tters for Ac cess MedPLUS, that it expected to be reimbursed for medical expenses out of any payments made to Ms . Green, and tha t it did not wish to enlist his help to pr

otect the subroga

tion interest of Ac

cess MedPLUS. After the settlement was paid, Ms. Faye’s attorney put the subrogation amoun

t into a trust account, and filed suit for a declaratory judgment against IRSI, askin

g for an order tha

t would reduce1 Appellant di d cite t o the tri al court t hi s Court’s opinion in the case of Blanke nship v. B ain, No. 01A01- 9709-CV-00492 (Tenn. Ct. App. at Nashville, filed July 29, 1998), which was subseque ntly rever

sed by the Tennessee Supr eme Court. See Blankenship v. Estate of B ain , 5 S.W.3d 647 (Tenn. 1999). We discussed t he made-whole doctr

ine extensively in t

he Blanke nship case, but appell ant cited it

solely for the pr

oposition that

the state’s subro gation claim was subject to reasonable and ordinary attorney fees. The trial court found th is to be a sou nd prop osition, bu t rightly observed that the Blanke nship case did not resolve t he question of which attor ney can recover the fees, and under what circum stances. -2- the subrogation claim by one-third, for reasonable

and necessary attorney fees. The trial court found that there was no contract between IRSI and Mr. Whitaker and granted summary judgment to IRSI. This appeal followed.
II.
Mr. Whitaker’s sole

argument on appe

al is that Access

Med PLUS was not entitled to subrogation because Ms. Green was not “made whole ” by the settlement with the tortfeasor’s insuror. For its part, IRSI notes that the appellant never submitted its made-whole argument for the trial court’s consider

ation, and that the

trial court was th

erefore neve

r afforded the o

pportunity to determine whether

or not Ms. Green had been made whole by the settlement, nor to consider whether the made-whole doctrine was applicable to the facts of the case. 1
The jurisdiction of the Court of Appeals is appellate onl y. Ten n. Code. Ann. § 16-4-108. This Court is not required to consider arguments on appeal that were not presented to th e court below. See Williamson County Br oadcasting Co. v. In

termedia Partners , 987 S.W.2d 550 (Tenn. Ct. App. 1998); Sweeney v. State Dept. of Transportation , 744 S.W.2d 905 (Tenn. Ct. App. 1987). It follows, therefor e, that we need not address the question of whether the made-whole doctrine precludes the ap

pellee from colle

cting any portion of

its subrogation cla

im. The basis of the trial court’s decision was the lack of a contractual relationship between the appellee and Mr. Whitaker. Tenn. Code. Ann. § 71-5-117 establishes the State’s right of subrogation where a Ten nCare recipient has received reimbursement for the costs of treatment paid by the TennCare progr

am. Section (a) of

that statute read

s in part:
To the extent of payments of medicalassistance, the state shall be subrogated to all rights of recovery, for the cost of care or treatment for the injury or illness for which medical assistance is

provided, contra

ctual or otherwis

e, of the recipie

nts against

any person. Section (c) of the

statute reads: The right of subrogation by the state to the recipients' ri gh t to recovery shall be subject to ordinary and re

aso nable a ttorney fees; provided, that further, where a recipient has retained an attorney, the attorney shall not be conside red liable unless-3-

the attorney has n

otice from the state of t

he state's claim of

subrogation prior

to disbursement of th

e funds to the rec

ipient. In the present case, Ms. Green engaged Mr . Whitaker to prosecute her personal injury lawsuit, as was her right. He filed the complaint on her behalf, without first notifying TennCare or IRSI. When it lea

rned of the law suit, the appellee gave Mr. Whitaker timely notification that the State’s subrogation interest was protected by IRSI, and that it did not de sire his representation or that of his firm. The appellant argues that she is entitled to recover one-third of the med ical expen ses paid by TennCare beca

use IRSI did not inter

vene in the case

against Mr. Shear, and it d

id not assist

Mr. Whitaker in “investigating, evaluating, prosecuting, negotiating or settling plaintiff’s claim.” The right of an attorney to share in a subrogation where the subr ogee did not ask for the attorney’s assistance i n protecting its interest was discussed at length in the case of Travelers Insurance Co. v. Williams, 541 S.W.2d 587 (Tenn. 1976). While noting that other jurisdictions have adopted different approaches, our Supreme Court held that each case must be decided by applying general fundamental principles of contract law to its particular facts, and that,
“. . . whether or not a

n attorney is e

nti tled to collect fr

om the insurer a f

ee with respect to a subrogation claim depends upon whether an express or implied contract or quasi contractual relationship exists between them.” 541 S.W.2d at 590. The Williams Court examined the facts of tha t case, and found there to be no express or implied contract between

the insurer and the insured’s attorney. The court also found there to be no unjust enrichment, and therefore no quasi contractual relationship b etwe en them, despite the fact that the insured’s attorney had secured the plaintiff insurance company’s subrogation claim by reaching a settlement with the tortfeasor’s insurance company. The Court reasoned that
“. . . one is not unjustly enriched by a benefit “forced upon” him as the re sul t of services voluntarily and officiously performed by another w ho has be en expressly informed by the alleged promisor that his services are not desired. 541 S.W.2d at 590. Like Mr. Williams’ attor

ney, Mr. Whitake

r had been expre

ssly informed that the i

nsuror did not desire his services, and that it was prepared to protect its own subrogation interest. Under the circumstances,

there was no contractua

l relationship between Mr. Whi taker and TennCa re that would entitle him to collect the attorney fees he requests.
III.-4-

The order of the tri al court is a ffirmed. Remand this cause to the Chancery Court of Davidson County for

further proceedings consistent with this opinion. Tax the costs on appeal to the appellant, Faye L. Green.

________________________________________ BEN H. CANTRELL, PRES IDING JUDGE, M.S.