STATE OF NORTH CAROLINA by b7sgx93

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									STATE OF NORTH CAROLINA                                          IN THE OFFICE OF
                                                             ADMINISTRATIVE HEARINGS
COUNTY OF CUMBERLAND                                                02 UNC 2316


AUGUSTINE VENDETTI                  )
                                    )
                        Petitioner, )
                                    )                   DECISION
      v.                            )           by SUMMARY JUDGMENT
                                    )
UNC HOSPITALS,                      )
                                    )
                        Respondent. )
______________________________________________________________________________

       THIS CAUSE comes on for consideration pursuant to Respondent’s Motion for Summary
Judgment and Sanctions filed in the Office of Administrative Hearings. Both parties have had the
opportunity to present matters before the Administrative Law Judge.

       After reviewing the record proper including the Respondent’s Motion, the Undersigned
hereby makes the following ruling based on the standards of review for Motions for Summary
Judgment.

                           Summary Judgment-Standard of Review

        Summary judgment is designed to eliminate formal trials where only questions of law are
involved. Summary judgment should be used cautiously, with due regard to its purposes and a
cautious observance of its requirements. See Brown v. Greene, 98 N.C.App. 377, 390 S.E.2d 695
(1990). The standard of review is whether there is a genuine issue of material fact and whether the
movant is entitled to judgment as a matter of law. See Kessing v. National Mortgage Corp., 278
N.C. 523, 534, 180 S.E.2d 823, 830 (1971). To entitle one to summary judgment, the movant must
conclusively establish a legal bar to the nonmovant’s claim or complete defense to that claim. See
Virginia Elec. and Power Co. v. Tillett, 80 N.C.App. 383, 385, 343 S.E.2d 188, 190-91, cert denied,
317 N.C. 715, 347 S.E.2d 457 (1986). The burden of establishing a lack of any legally triable issue
resides with the movant. See Pembee Mfg. Corp. v. Cape Fear Constr. Co. 313 N.C. 488, 329
S.E.2d 350 (1985

       As observed in Nelson v. Ferris, 136 F. Supp. 2d 703, 712 (E.D. Mich. 2001), “[t]hree 1986
United States Supreme Court cases -- Matsushita Electrical Industrial Co. v. Zenith Radio Corp.,
475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); and Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed.
2d 265, 106 S. Ct. 2548 (1986) -- ushered in a ‘new era’ in the standards of review for a summary
judgment motion. These cases, in the aggregate, lowered the movant’s burden on a summary
judgment motion.” Summary judgment is proper “if the pleadings, depositions, answer to
interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine
issue as to any material fact and that [the moving] party is entitled to a judgment as a matter of law.”
Rule 56, N.C.G.S. § 1A-1.

        BASED UPON the record, the Undersigned makes the following Findings of Fact which
shall also serve as Conclusions of Law:

       1.     Petitioner Augustine Vendetti obtained medical care at The University of North
Carolina Hospitals on or about October 12, 1998, and Petitioner’s grandchild Kate Vendetti,
obtained medical care at The University of North Carolina on or about September 18, 2002 accruing
charges amounting to $145.00;

       2.      After payments and adjustments were made, there was remaining a balance of $58.23.

      3.      Respondent garnished Petitioner's tax refund on August 9, 2002 under the Set-Off
Debt Collection Act, to receive payment of $58.23 on the account of Petitioner.

        4.    Petitioner petitioned the Office of Administrative Hearings (OAH) on December 27,
2002, regarding Respondent's right to receive the garnished tax refund from 2001 earnings under the
Set-Off Debt Collection Act.

        5.     Respondent's attorney served by mail a brief set of Request for Admissions upon
Petitioner and Petitioner failed to respond by the due date.

        6.      By Petitioner's failure to respond to the Request for Admissions, Petitioner is deemed
to have admitted the truth of each and every request and thereby to have conclusively established the
truth of all matters set out:

                a)    That Petitioner's still owes $58.23 to The University of North Carolina at
                      Chapel Hill Hospitals, and

                b)    That Petitioner would be entitled to a state income tax refund of $58.23 for the
                      year 2001.

       7.     There exists no legal basis to excuse Petitioner’s failure to timely respond to
Respondent’s Requests for Admissions under Rule 36 of the North Carolina Rules of Civil
Procedure and nothing in Petitioner’s responses on record can avoid application of the “deemed
admitted” provisions in Rule 36.

       8.      Respondent served its Requests for Admissions on February 6, 2003. On March 14,
2003 Petitioner requested an extension to March 21, 2003 “to assemble documentation” for his case
which was granted. On March 23, Petitioner submitted a copy of his Tricare Explanation of
Benefits. By law pursuant to Rule 36(a), “[t]he matter is admitted unless, within 30 days after
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service of the request, or within such shorter or longer time as the court may allow, the party to
whom the request is directed serves upon the party requesting the admission a written answer or
objection addressed to the matter....” Responses served by Petitioner are untimely and insufficient as
a matter of law to contradict the admissions that must be deemed to have been admitted by operation
of Rule 36.

        9.     The above cited admissions became conclusively established and constitute a valid
basis for summary judgment in this case. Moreover and in support of this summary judgment
decision, the Tricare document submitted by Petitioner shows his deductible to be $41.55 and his
cost share to be $16.68 which add up to be $58.23 in the beneficiary liability summary of his
document.

       BASED ON the foregoing, the undersigned Administrative Law Judge makes the following:

                                             DECISION

       Based on the foregoing including the pleadings, and admissions on file pursuant to Rule 36 of
the Rules of Civil Procedure, together with other documents in the official record, the undersigned
Administrative Law Judge GRANTS Summary Judgment for the Respondent and finds
Respondent is entitled to the state income tax refund otherwise due Petitioner.

                                              NOTICE

       The agency making the final decision in this contested case is required to give each party an
opportunity to file exceptions to this decision issued by the Undersigned, and to present written
arguments to those in the agency who will make the final decision. N. C. Gen. Stat. § 150B-36(a).

        In accordance with N.C. Gen. Stat. § 150B-36 the agency shall adopt each finding of fact
contained in the Administrative Law Judge’s decision unless the finding is clearly contrary to the
preponderance of the admissible evidence. For each finding of fact not adopted by the agency, the
agency shall set forth separately and in detail the reasons for not adopting the finding of fact and the
evidence in the record relied upon by the agency in not adopting the finding of fact. For each new
finding of fact made by the agency that is not contained in the Administrative Law Judge’s decision,
the agency shall set forth separately and in detail the evidence in the record relied upon by the agency
in making the finding of fact.

            The   agency   shall   adopt  the   decision   of   the
Administrative Law Judge unless the agency demonstrates that the
decision of the Administrative Law Judge is clearly contrary to the
preponderance of the admissible evidence in the official record.
 The agency that will make the final decision in this case is the
University of North Carolina Hospitals at Chapel Hill.



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                                             ORDER

        It is hereby ordered that the agency making the final decision in this matter serve a copy of
the final decision to the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh,
North Carolina 27699-6714, in accordance with N.C. Gen. Stat. § 150B-36.

       IT IS SO ORDERED.

                                                      This the 23rd day of April, 2003.


                                                      _______________________________
                                                      Augustus B. Elkins II
                                                      Administrative Law Judge




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