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Forkey was a wrongful death case where the surviving wife brought suit to recover insurance proceeds from a UM policy issued by Farmers.  Medicare had paid for medical items and services related to the accident prior to Forkey passing away.  The Department of Health and Human Services made a claim against the UM policy.  The UM carrier was granted a Motion for Interpleader and for Discharge with the UM proceeds deposited with the court.    The Farmers Insurance Exchange v. Leona Forkey 2010 U.S. Dist. LEXIS 137716 decision recently came out which gave Medicare priority over the death beneficiary’s claims reaching the opposite result from Bradley.  This isn’t surprising as it relies upon a previous precedent out of the 9^th from 1995.  See Zinman v. Shalala, 67 F.3d 841 (9^th Cir. 1995).  The Forkey court gave deference to the Agency’s interpretation of the MSP found in the Medicare Secondary Payer Manual unlike in the Bradley case. 

The 8^thCircuit issued a decision in 2009 that reaches the same outcome as Forkey and Zinman.  See Mathis v. Leavit, 554 F.3d 731(8^th Cir., January 30, 2009).   So we have the 11^th finding that non-Medicare beneficiary’s claims take precedence over Medicare’s claim while the 8^th and 9^th come out the opposite way.  Since there is a split in the circuits on the issue, it may ultimately go to the US SCT.  If it does, let’s hope the US SCT agrees with our 11^th Circuit.