                              IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
   JACKIE ABBOTT; ROBERT BERGANSKY; RAYMOND BROWN; NICHOLAS
    BIGLER; RICHARD CAMPUZANO; DALTON GORMEY; TRACY JAMES;
STEPHANIE KRUEGER; ZAINAB MOHAMED; ROBERT PIERSON; LUCAS SMITH;
  ROBERT VAN STEENBURGH; AMBER WINTERS; CHRISTINA YERKEY; AND
                          STEVEN YOUNG,
                        Plaintiffs/Appellants.

                                 v.

  BANNER HEALTH NETWORK FKA BANNER HEALTH, INC., AN ARIZONA
 CORPORATION; DIGNITY HEALTH FKA CATHOLIC HEALTHCARE WEST, A
   CALIFORNIA CORPORATION; SCOTTSDALE HEALTHCARE CORP., AN
   ARIZONA CORPORATION; NORTHWEST HOSPITAL LLC, A DELAWARE
 CORPORATION; NORTHERN ARIZONA HEALTHCARE CORP., AN ARIZONA
   CORPORATION; JOHN C. LINCOLN HEALTH NETWORK, AN ARIZONA
   CORPORATION; UNIVERSITY MEDICAL CENTER CORP., AN ARIZONA
    CORPORATION; CARONDELET HEALTH NETWORK, AN ARIZONA
 CORPORATION; TUCSON MEDICAL CENTER, AN ARIZONA CORPORATION;
       ORO VALLEY HOSPITAL, LLC, A DELAWARE CORPORATION,
                      Defendants/Appellees,

                        No. CV-15-0013-PR
                        Filed May 23, 2016

         Appeal from the Superior Court in Maricopa County
              The Honorable J. Richard Gama, Judge
                        No. CV2012-007665
                           AFFIRMED

            Opinion of the Court of Appeals, Division One
               236 Ariz. 436, 341 P.3d 478 (App. 2014)
                            REVERSED

COUNSEL:

David L. Abney, Knapp & Roberts P.C., Scottsdale; Geoffrey M.
Trachtenberg (argued), Levenbaum Trachtenberg PLC, Phoenix; and B.
Lance Entrekin, The Entrekin Law Firm, Phoenix, Attorneys for Jackie
Abbott, Robert Bergansky, Raymond Brown, Nicholas Bigler, Richard
Campuzano, Dalton Gormey, Tracy James, Stephanie Krueger, Zainab
               ABBOTT v. BANNER HEALTH NETWORK
                        Opinion of the Court

Mohamed, Robert Pierson, Lucas Smith, Robert Van Steenburgh, Amber
Winters, Christina Yerkey, and Steven Young

Richard B. Burnham, Cameron C. Artigue (argued), Christopher L. Hering,
Gammage & Burnham P.L.C., Phoenix, Attorneys for Banner Health
Network, Banner Health Inc., Dignity Health, Catholic Healthcare West,
Scottsdale Healthcare Corp., Northwest Hospital LLC, Northern Arizona
Healthcare Corp, John C. Lincoln Health Network, University Medical
Center Corp., Carondelet Health Network, Tucson Medical Center, and Oro
Valley Hospital, LLC

Stanley G. Feldman, Haralson, Miller, Pitt, Feldman & McAnally, P.L.C.,
Tucson; Adam Studnicki, Studnicki Law Firm, P.C., Scottsdale, and Lincoln
Combs, Gallagher & Kennedy, P.A., Phoenix, Attorneys for Amici Curiae
Arizona Association for Justice/Arizona Trial Lawyers Association

JUSTICE BRUTINEL authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, JUSTICE TIMMER,
and JUSTICE BERCH (RETIRED) joined.

JUSTICE BRUTINEL, opinion of the Court:

¶1             Petitioners are health care providers (“Hospitals”) who
treated patients (“Patients”) injured by third parties. The Hospitals were
paid by the Patients’ insurer, the Arizona Health Care Cost Containment
System (“AHCCCS”), which had negotiated reduced rates with the
Hospitals. The Hospitals then recorded liens against the Patients pursuant
to A.R.S. § 33-931 and A.R.S. § 36-2903.01(G) for the difference between the
amount typically charged for their treatment and the reduced amount paid
by AHCCCS. In order to receive their personal injury settlements with the
third parties, Patients settled with the Hospitals by paying negotiated
amounts to release the liens.

¶2            We assume, without deciding, that—as Plaintiffs argue—
Arizona’s lien statutes are preempted by federal law. But, because there
was a bona fide dispute about the enforceability of these liens when the
Patients and Hospitals entered into settlement agreements to achieve lien
releases (“accord and satisfaction agreements” or “agreements”), the
agreements were supported by adequate consideration and addressed a


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               ABBOTT v. BANNER HEALTH NETWORK
                        Opinion of the Court

proper subject matter.       Consequently, the accord and satisfaction
agreements are valid.

                            I.   BACKGROUND

¶3            The Patients, along with other patients who did not settle with
the Hospitals, sued to set aside the accord and satisfaction agreements and
to recover the amounts paid to release the liens. The Hospitals moved to
dismiss the complaint against the settling Patients pursuant to Arizona Rule
of Civil Procedure 12(b)(6) for failing to state a claim because the parties
had reached an accord and satisfaction. The Patients responded that the
accord and satisfaction agreements were unenforceable because they lacked
a proper subject matter and consideration. They argued that 42 U.S.C.
§ 1396a(a)(25)(C) preempted A.R.S. §§ 33-931 and 36-2903.01, which
authorized the Hospitals’ liens. Because the accord and satisfaction
agreements were based on invalid liens, the Patients asserted, the
agreements violated public policy, had an improper purpose, and lacked
consideration. The Patients also claimed that Provider Participation
Agreements between the Hospitals and AHCCCS required the Hospitals to
“comply with all federal, State and local laws, regulations, standards, and
executive orders governing performance of duties under this Agreement”
and thus also prohibited the liens as “balance billing”—the practice of
billing a patient for the difference between the providers’ customary
charges and what AHCCCS pays for services.

¶4            The trial court dismissed the Patients’ complaint stating, “it is
irrelevant whether federal law preempts Arizona law and prohibits
hospitals from enforcing statutory liens on AHCCCS accounts . . . [because]
[a]ccord and satisfaction does not turn on whether Plaintiffs would have
prevailed on the merits of the dispute that was settled.” The court
concluded that the accord and satisfaction agreements were “final and
binding regardless of the validity of the underlying claims.”

¶5            The court of appeals reversed. Abbott v. Banner Health
Network, 236 Ariz. 436, 448 ¶ 37, 341 P.3d 478, 490 (App. 2014). Reasoning
that the accord and satisfaction agreements were void because federal law
preempts the Arizona laws allowing the liens, id. at 438 ¶ 1, 341 P.3d at 480,
the court held that there was not a “good faith dispute about the
enforceability of the lien[s],” and therefore the accord and satisfaction
agreements lacked both proper subject matter and consideration. Id. at 446–

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               ABBOTT v. BANNER HEALTH NETWORK
                        Opinion of the Court

47 ¶¶ 30–33, 341 P.3d at 478, 489 (stating that an agreement lacks proper
subject matter if it is illegal or against public policy). The court concluded
that “[i]f the underlying agreement is prohibited and unenforceable, an
accord and satisfaction based on that agreement is also unenforceable.” Id.
at 443 ¶ 20, 341 P.3d at 485.

¶6            We granted review to determine whether the accord and
satisfaction agreements between the Patients and the Hospitals are valid,
which is an issue of statewide importance and likely to recur. We have
jurisdiction under article 6, section 5(3), of the Arizona Constitution and
A.R.S. § 12-120.24.
                             II.   DISCUSSION

¶7             We review de novo an order granting a motion to dismiss for
failure to state a claim. Coleman v. City of Mesa, 230 Ariz. 352, 355 ¶ 7, 284
P.3d 863, 866 (2012).

¶8           The Hospitals’ liens are authorized by A.R.S. §§ 33-931(A)
and 36-2903.01(G)(4). A.R.S. § 33-931 is the general medical lien statute. It
provides hospitals an “entitle[ment] to a lien for the care and treatment or
transportation of an injured person” that

       extends to all claims of liability or indemnity, except health
       insurance and underinsured and uninsured motorist coverage as
       defined in § 20-259.01, for damages accruing to the person to whom
       the services are rendered, or to that person’s legal representative, on
       account of the injuries that gave rise to the claims and that required
       the services.

A.R.S. § 33-931(A). According to § 36-2903.01(G)(4), “A hospital may collect
any unpaid portion of its bill from other third-party payors or in situations
covered by title 33, chapter 7, article 3.” These Arizona statutes allow a
hospital that accepts payments from AHCCCS to file liens to collect any
unpaid portion of its bill from third-party payors for its “customary
charges.” A.R.S. § 33-931(C).

¶9            On the other hand, federal Medicaid law explicitly prohibits
balance billing. Specifically, 42 U.S.C. § 1396a(a)(25)(C) provides that when
a person receives Medicaid assistance for which a third party is liable, the
provider

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               ABBOTT v. BANNER HEALTH NETWORK
                        Opinion of the Court

       may not seek to collect from the individual (or any financially
       responsible relative or representative of that individual) payment of
       an amount for that service (i) if the total of the amount of the
       liabilities of third parties for that service is at least equal to the
       amount payable for that service under the plan . . . .

And pursuant to 42 C.F.R. § 447.15:

       A State plan must provide that the Medicaid agency must limit
       participation in the Medicaid program to providers who accept, as
       payment in full, the amounts paid by the agency plus any deductible,
       coinsurance or copayment required by the plan to be paid by the
       individual.

Together, these federal laws prohibit a medical care provider from
collecting from the individual receiving care the difference in the amount
paid by Medicaid, or a state plan like AHCCCS, and the amount typically
charged.

¶10            The court of appeals concluded that Arizona law conflicts
with applicable federal law and is thus preempted under article VI, section
2, of the United States Constitution. But courts should not unnecessarily
decide constitutional questions. Petolicchio v. Santa Cruz Cty. Fair and Rodeo
Ass’n, Inc., 177 Ariz. 256, 259, 866 P.2d 1342, 1345 (1994). Deciding whether
the Arizona hospital lien statutes are preempted is unnecessary in
determining whether the trial court properly considered and granted
Petitioners’ motion to dismiss.

¶11           Assuming, as noted above, that federal law preempts the
Arizona lien statutes, we turn to the validity of the accord and satisfaction
agreements.     An “accord and satisfaction discharges a contractual
obligation or cause of action when the parties agree to exchange something
of value in resolution of a claim or demand and then perform on that
agreement, the accord being the agreement, and the satisfaction its
execution or performance.” Best Choice Fund, LLC v. Low & Childers, P.C.,
228 Ariz. 502, 510 ¶ 24, 269 P.3d 678, 686 (App. 2011) (quoting Vance v.
Hammer, 105 Ariz. 317, 319, 464 P.2d 340, 342 (1970)) (internal quotation
marks omitted). The four elements of an accord and satisfaction are (1)
proper subject matter, (2) competent parties, (3) assent or meeting of the
minds of the parties, and (4) consideration. Vance, 105 Ariz. at 320, 464 P.2d

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                ABBOTT v. BANNER HEALTH NETWORK
                         Opinion of the Court

at 343. The Patients contend that the first and fourth elements are lacking
here.

¶12            The settlement of a bona fide dispute provides consideration
if it is made fairly and in good faith. Brecht v. Hammons, 35 Ariz. 383, 389,
278 P. 381, 383 (1929), disapproved on other grounds, Ariz. Pub. Serv. Co. v. S.
Union Gas Co., 76 Ariz. 373, 382, 265 P.2d 435, 441 (1954). As this Court
stated in Brecht:

       The settlement of a controversy is valid and binding, not because it
       is the settlement of a valid claim, but because it is the settlement of a
       controversy. And when such settlement is characterized by good
       faith, the court will not look into the question of law or fact in dispute
       between the parties, and determine what is right. All that it needs to
       know is, that there was a controversy between the parties, each
       claiming in good faith rights in himself against the other and that
       such controversy has been settled.

Id. On the other hand, “the surrender of a claim which is known to be
entirely without foundation either in law or at equity does not afford a
sufficient consideration for a compromise.” Id. at 390, 278 P. at 383. If the
matter in controversy was fairly considered by the parties to be unsettled
at the time of the agreements, the settlement will not be unwound, even if
the statutory provision creating the controversy is later determined to be
invalid. Id. at 390–91, 278 P. at 383 (citing Bofinger v. Tuyes, 120 U.S. 198
(1887)). These principles align with the general proposition that settlements
of disputed matters are favored by the law and will be upheld if fairly
made. E.g., Brecht, 35 Ariz. at 390, 278 P. at 383; Phillips v. Musgrave, 23 Ariz.
591, 594–95, 206 P. 164, 165 (1922).

¶13           Brecht is instructive here. At the time of the bank failure
underlying that case, the Arizona Constitution imposed personal liability
on stockholders of insolvent banks. Brecht, 35 Ariz. at 385–86, 278 P. at 382.
The state sued the bank’s stockholders and obtained a judgment against
them. Id. The stockholders then settled with the state to satisfy the
judgment. Id. After the settlement was finalized, this Court determined
that the provision imposing personal liability on stockholders was
preempted by federal law. Hammons v. Watkins, 33 Ariz. 76, 87, 262 P. 616,
620 (1927); see Brecht, 35 Ariz. at 386, 278 P. at 382. In the stockholders’
subsequent suit to unwind the settlement, we found that there was a good

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                ABBOTT v. BANNER HEALTH NETWORK
                         Opinion of the Court

faith controversy between the parties at the time of the settlement and held
that the settlement was therefore binding. Brecht, 35 Ariz. at 391, 278 P. at
383–84.

¶14            The Patients argue that the Hospitals’ liens asserted under
Arizona law are illegal under federal Medicaid law, 42 C.F.R. § 447.15 and
42 U.S.C. § 1396a(a)(25)(C). Further, because they are illegal they cannot
constitute a proper subject for an accord and satisfaction, and thus the
agreements lack consideration. Under Brecht, however, the pertinent
question is whether the legality of the liens (that is, whether federal
Medicaid law preempts the Arizona laws authorizing the liens) was
“settled” at the time of the agreement. The Hospitals argue that since 1984,
A.R.S. § 36-2903.01(G)(4) has allowed hospitals to enforce provider-liens
under A.R.S. § 33-931 after accepting payment from AHCCCS, and this
statute is presumptively valid and constitutional.

¶15            Liens such as these have been authorized by Arizona statute
for more than thirty years without an Arizona appellate court suggesting
that enforcement of such liens is preempted by federal law. Indeed, our
courts have found such liens valid and enforceable. See Blankenbaker v.
Jonovich, 205 Ariz. 383, 388 ¶ 22, 71 P.3d 910, 915 (2003) (noting that “the
lien statutes extend to health care providers . . . the ability to enforce a lien
against those liable to the patient for damages in order to secure the
providers’ customary charges for care and treatment of an injured person”);
LaBombard v. Samaritan Health Sys., 195 Ariz. 543, 551 ¶ 31, 991 P.2d 246, 254
(App. 1998) (holding that liens against the tort recovery of AHCCCS
patients are enforceable despite there being “no right to recover directly”
from the patient).

¶16           In addition, the federal statute and regulation, 42 U.S.C.
§ 1396a(a)(25)(C) and 42 C.F.R. § 447.15, do not specifically address the
collection of money owed to the patient by third-party tortfeasors. Several
courts, however, have concluded that settlement proceeds belong to the
patient and the federal prohibitions on balance billing apply. See, e.g.,
Spectrum Health Continuing Care Grp. v. Anna Marie Bowling Irrevocable Tr.
Dated June 27, 2002, 410 F.3d 304, 315 (6th Cir. 2005) (holding “the
enforcement of [the medical provider’s] lien on the proceeds of the
malpractice settlement to recover the balance of its customary fee is
prohibited by federal and state law” and “[h]aving chosen to accept
payment from Medicaid . . . [the medical provider] abandoned all rights to

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                ABBOTT v. BANNER HEALTH NETWORK
                         Opinion of the Court

further recovery of its customary fee from the lien”); Evanston Hosp. v.
Hauck, 1 F.3d 540, 543–44 (7th Cir. 1993) (holding a hospital was not
permitted to return a Medicaid payment and sue the patient for its
customary fee, and finding that allowing the hospital to recover the
additional sum would make Medicaid “an insurance program for hospitals
rather than for indigent patients”). The United States District Court for the
District of Arizona has reached the same conclusion. Lizer v. Eagle Air Med.
Corp., 308 F. Supp. 2d 1006, 1009 (D. Ariz. 2004) (“Congress passed the
balance billing prohibition in order to protect eligible patients from having
to pay additional sums for services already compensated by Medicaid. The
accompanying regulation was passed in order to ensure that this purpose
was carried out by preventing providers from intercepting funds on the
way to a patient.”).

¶17           But these cases are not binding on Arizona state courts, and
at the time of the accord and satisfaction agreements here, no Arizona
appellate court had addressed the enforceability of Arizona’s medical lien
statutes against third-party settlements obtained by Medicaid patients.
Thus, while federal law may preempt state law in situations like these,1 the
issue was not settled in Arizona when these agreements were entered into.
The stated public policy in Arizona, as reflected by our statutes, was that
such liens were valid.

¶18           An accord and satisfaction has proper subject matter unless it
is founded on a contract that violates statutes or is contrary to public policy.
See 1800 Ocotillo, LLC v. WLB Grp., Inc., 219 Ariz. 200, 202 ¶ 7, 196 P.3d 222,
224 (2008) (“Contract provisions are unenforceable if they violate legislation
or other identifiable public policy.”). Here, Arizona law specifically
authorized the liens that were settled. Because the statutory policy of
Arizona is to allow such liens, they are a proper subject matter for the
accord and satisfaction until such time as the Arizona laws authorizing the
liens are clearly determined to be preempted by federal law. Thus, the
accord and satisfaction agreements had a proper subject matter. Likewise,



1       While this case was pending in the court of appeals, the superior
court granted summary judgment in favor of other plaintiffs—patients
against whom hospital liens were asserted but who had not entered into
accord and satisfaction agreements with hospitals—determining that the
state statutes are preempted by federal law.
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               ABBOTT v. BANNER HEALTH NETWORK
                        Opinion of the Court

the settlement of the bona fide dispute served as consideration to support
the accord and satisfaction.

¶19            The Patients also suggest that A.R.S. §§ 36-2903.01(G)(4) and
33-931(A) are preempted because the Provider Participation Agreements
required the Hospitals to follow federal law. This argument begs the
question. If it was not settled that such liens were preempted as prohibited
balance billing under federal law, it was no more settled in an agreement
incorporating that same federal law.            The terms of the Provider
Participation Agreement do not change the fact that the accord and
satisfaction agreements resolved bona fide disputes.

                       III.      CONCLUSION

¶20            Based on the bona fide dispute about the enforceability of the
liens when the Patients and Hospitals entered into the accord and
satisfaction agreements, these agreements were supported by adequate
consideration and had a proper subject matter. Consequently, the
agreements are valid, and the trial court appropriately granted Hospitals’
motion to dismiss. We reverse the court of appeals’ opinion and affirm the
trial court’s dismissal of the complaint and entry of judgment in favor of
the Hospitals.




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