Court Enforces Settlement – Rejects Defendant’s Attempt to Add Medicare Lien Language

December 31, 2025 / 13 min read

As 2025 is ending, the United States District Court for the Southern District of Florida has released a new decision which serves as an important reminder for insurers, TPAs, and defense counsel that the parties need to be on the same page regarding how Medicare secondary payer (MSP) issues will be addressed as part of claims settlement.

gavel-and-sclaes-of-justice (1)

Specifically, in Smith v. Wal-Mart Stores, East, LP, 25-CV-20228, 2025 WL 3720846 (S.D. Fla. Dec. 5, 2025)^[1]a dispute developed regarding how any potential Medicare liens would be handled as part of a settlement between the plaintiff, Brenda Smith, and defendant Walmart. The parties reached a settlement which required the plaintiff, in part, to provide her Medicare status and information regarding any Medicare liens, as well as an indemnification provision. Subsequently, the defendant attempted to add settlement language giving it control over how any Medicare liens would be addressed. The court enforced the settlement agreement without the defendant’s proposed additional provisions finding that these provisions were not part of the settlement terms reached by the parties as part of their settlement negotiations. On this point, the court noted that if the defendant wanted those terms to be part of the settlement, they should have proposed them as part of the settlement negotiations.

The author provides an overview of this new decision as follows:

Summary and Takeaways

The plaintiff filed a claim for personal injuries against Walmart and another defendant from an alleged slip and fall accident at a Walmart store. The plaintiff and Walmart negotiated a settlement which was memorialized by defense counsel via e-mail. As part of the agreement the plaintiff was required to provide certain information regarding her Medicare status, any related lien information, along with a confidentiality and indemnification provision.

However, when the parties started to exchange settlement document drafts, the defendant included additional provisions, in part, giving Walmart “[d]irect authority to pay any Medicare lien unilaterally” and “[v]eto authority over how and when liens are resolved.”^[2]The plaintiff objected to this arguing that she had not agreed to these conditions as part of the settlement negotiations. After weeks of exchanging proposed drafts, the plaintiff unilaterally prepared and signed a general release of claims that contained an indemnification provision related to medical liens and a confidentiality clause.^[3]

The plaintiff then asked the district court to enforce the settlement and levy sanctions and attorney’s fees against Walmart. The court, applying Florida-specific law regarding contract principles, ruled for the plaintiff and enforced the settlement agreement minus the provisions the defendant attempted to add in the settlement documents as referenced above. In reaching this decision, the court found that defense counsel’s e-mail memorialized a settlement agreement between the parties which did not include the language the defendant attempted to subsequently add to the settlement document. In this regard, the court noted, in part, that “[i]f Walmart wanted to bargain for additional non-monetary terms, it was incumbent on Walmart to propose those terms to Plaintiff during the negotiations so that Plaintiff could accept or reject them, but it cannot add non-monetary terms after the Parties agreed to a settlement.”^[4]

Accordingly, the court directed Walmart to issue payment of the settlement within three days of the court’s order. The court, however, denied the plaintiff’s request for sanctions and attorney’s fees finding, in general, that the settlement agreement did not contain the necessary provisions entitling the plaintiff to these remedies.

In terms of general takeaways, this case raises several points for insurers, TPAs, and defense counsel to consider going forward including:

First, determining whether there are potential Medicare lien claims prior to settlement is an important first step to make sure potential recovery claims are not missed. This allows the time necessary to seek the removal of unrelated or inappropriate claims, which is helpful to get a more accurate idea regarding the potential lien payback amount, and in terms of assessing the claim’s overall settlement value. From the author’s point of view, this was not necessarily the main issue in Smith as the parties, at least on some level, recognized potential Medicare lien issues as part of the settlement process.

Second, establishing protocols addressing how Medicare recovery claims will be addressed, disputed, and resolved, including which party will be responsible for tendering payment to Medicare (and how that will be done), along with applicable settlement language, are other important consideration points. In Smith it is unknown if Walmart perhaps had a protocol whereby it wanted to either assume responsibility for reimbursing Medicare, or at least have some control over the process.^[5]If so, then there was an apparent disconnect on this point as defense counsel attempted to add provisions to the settlement agreement giving Walmart control over the Medicare lien process after the parties had already reached a settlement with different terms on this point.

Third, and importantly, if insurers have established protocols, the claims handler and defense counsel should be aware of the related requirements with all relevant protocol points discussed by the parties as part of settlement negotiations and followed as part of claims handling and settlement.

Fourth, in situations where an insurer does not have set protocols, it is important that defense counsel and the frontline claims handler are on the same page in terms of understanding how Medicare related issues should be handled, and that these expectations are clearly communicated to plaintiff’s counsel as part of the settlement process.

Finally, keep in mind that Verisk offers several different conditional payment services which can help insurers address CMS, Medicare Advantage, and Part D conditional payment recovery claims, along with helping insurers develop best practice protocols which may help avoid the type of issues experienced in the Smith case. For additional information, see the How Verisk Can Help section below.

For those interested in a deeper breakdown of the court’s decision, the following overview is presented:

Case Breakdown

Facts

The plaintiff, Brenda Smith, filed a liability action against the defendant, Walmart, and another defendant (Vestis Services, LLC) alleging that the defendant’s negligence caused her to slip and fall at a Walmart store thereby sustaining physical injuries.^[6]On May 16, 2025, the plaintiff and Walmart negotiated a settlement which defendant’s counsel memorialized via e-mail.

This e-mail (which the court referenced as the “Settlement Agreement”)^[7] read, in pertinent part, as follows:

“Please allow this to confirm that Brenda Smith & Walmart reached a settlement today at $[redacted]. In order to finalize the release, I need Plaintiff’s [M]edicare/Medicaid status, and if any liens exist. I’ll prepare a release with confidentiality & Indemnification, and will work on confidentiality language that does not bar her from moving forward with her claim against the co-defendant Vestis. Please also send me your firm’s W-9. We also discussed that you will be filing a notice of settlement, but if you need assistance, please feel free to reach out. We also discussed the notice of settlement likely being needed for the court to excuse us from the order setting mediation on 5/29. It was great working with you on this and glad we could get this resolved.”^[8]

Dispute Develops over Settlement Language

The parties then exchanged several draft releases which led to a dispute on language relating to the Medicare conditional payment reimbursement and the resolution of medical liens. In particular, the plaintiff objected to the defendant’s proposed language that gave Walmart “[d]irect authority to pay any Medicare lien unilaterally” and “[v]eto authority over how and when liens are resolved.”^[9]In addition, the plaintiff objected to proposed language that gave Walmart “oversight rights” to plaintiff’s communications with her insurers and their representatives, the power to declare a “material breach” of the settlement agreement thereby allowing Walmart to recoup the entire sum of the settlement, and access to privileged or confidential attorney-client materials.^[10]After weeks of exchanging proposed drafts, the plaintiff unilaterally prepared and signed a general release of claims that contained a provision for indemnification relating to medical liens and a confidentiality clause (the “General Release”).^[11]

Plaintiff moves to enforce the settlement and for sanctions and attorney’s fees

The plaintiff moved the court to enter an order (1) enforcing the settlement agreement and compelling Walmart to deliver the settlement check within three days from the court’s Order and (2) levying sanctions against Walmart for post-judgment interest and attorney’s fees.^[12]In response, Walmart did not dispute that the parties settled case and did not take issue with the plaintiff’s recitation of the e-mail that memorialized the settlement agreement.^[13]Rather, Walmart alleged, in part, that the plaintiff failed to cooperate on consummating a mutually agreeable release and disagreed with the plaintiff’s recitation of post-settlement events.^[14]

This dispute was assigned to Marty Fulgueira Elfenbein, United States Magistrate Judge (“Magistrate Elfenbein” or “the Magistrate”) who issued her “Report and Recommendation” through which she recommended that the court (1) GRANT the plaintiff’s motion to enforce settlement and (2) DENY the plaintiff’s request for sanctions and attorney fees. Smith v. Wal-Mart Stores, East, LP, 25-CV-20228, 2025 WL 3720846 (S.D. Fla. Dec. 5, 2025). Magistrate Elfenbein gave the parties 14 days from the date of being served with a copy of her Report within which to file written objections.^[15]

On December 22, 2025, the Honorable Beth Bloom, after conducting a de novo review of Magistrate Elfenbein’s recommendations, entered an “Order Adopting Magistrate Judge’s Report and Recommendation” and instructing the clerk to close the case. Smith v. Wal-Mart Stores, East, LP, Order Adopting Magistrate Judge’s Report and Recommendation, Case 1:25-cv-20228-BB, Document 59, (December 23, 2025). As part of her Order, Judge Bloom noted that neither party had filed objections to Magistrate Elfenbein’s report or requested additional time to do so. Id.

Court enforces the settlement – rejects defendant’s efforts to add terms regarding Medicare liens

Magistrate Elfenbein first noted that the district court had to apply Florida state law governing contract principles to determine the enforceability issue and outlined several points for consideration.^[16]For example, the Magistrate noted that the plaintiffs, as the moving party, “must establish a meeting of the minds or reciprocal assent to a certain and definite proposition.”^[17] In addition, Magistrate Elfenbein stated that “[i]mportantly, when enforcing a settlement, ‘courts may not modify or rewrite settlement agreements reached by the parties.’ [citations omitted] [and] in doing so ‘a court must mirror the agreement and may not include any term or condition not included in the agreement. [citations omitted].’”^[18]

Turning to the parties’ dispute, the Magistrate noted that under Florida contract law “an e-mail exchange between parties can constitute a settlement agreement provided the offeree accepted each and every term proposed by the offeror.”^[19]In this regard, Magistrate Elfenbein found that defense counsel’s e-mail memorialized a Settlement Agreement stating that “[h]ere, there is no dispute among the Parties that they settled Plaintiff’s claims against Walmart, and the Court need not guess the terms of that agreement because Walmart memorialized it via email. Looking at the Settlement Agreement, the Parties agreed to the following: (1) Walmart would pay Plaintiff an agreed-upon sum; (2) Plaintiff would sign a release of any claims against Walmart, which would also include indemnification language and a confidentiality clause; and (3) Plaintiff would provide Walmart with information about her Medicare/Medicaid status and would advise if any medical liens exist.”^[20]

The plaintiff argued that the draft releases prepared by defense counsel contained numerous conditions to which she objected and did not agree to as part of the settlement negotiations.^[21] As part of this dispute, Magistrate Elfenbein noted that “[r]ather than address whether the contested conditions were part of the Settlement Agreement, in its Response, Walmart only addressed its efforts ‘to meet and confer on the language of the release’ with Plaintiff which the Magistrate believed “misse[d] the point.”^[22]

Rather, Magistrate Elfenbein stated that once a settlement agreement has been established, the “Court must look at the agreed-upon terms when deciding matters of enforcement, and here, Walmart has not shown that any of the additional terms to which Plaintiff objects were part of their agreement. If Walmart wanted to bargain for additional non-monetary terms, it was incumbent on Walmart to propose those terms to Plaintiff during the negotiations so that Plaintiff could accept or reject them, but it cannot add non-monetary terms after the Parties agreed to a settlement.”^[23]

Magistrate Elfenbein also found that the plaintiff complied with all conditions of the settlement agreement and executed a General Release that memorialized the sum of money that Walmart would pay to settle her claims, that released Walmart from liability for such claims and contained an indemnification and a confidentiality clause. ^[24]Further, the Magistrate found that the plaintiff provided Walmart with the necessary information about liens and her Medicare eligibility both during discovery and following the parties’ settlement.^[25]

Accordingly, Magistrate Elfenbein found that the “Plaintiff has done everything required of her as part of the Settlement Agreement. All that remains is for Walmart to perform its part of the bargain, that is, to deliver the settlement check to Plaintiff, which it has failed to do [citation omitted]. Because Walmart is in breach of the Settlement Agreement, the Court concludes that the Settlement Agreement should be enforced and Walmart should be ordered to tender the settlement check to Plaintiff.”^[26]

Court denies request for sanctions and attorney’s fees

While the court enforced the settlement agreement, it denied the plaintiff’s request for sanctions and attorney’s fees. In denying this relief, Magistrate Elfenbein found, in main part, that the settlement agreement did not contain a prevailing party attorney’s fees provision, meaning if a party seeks to enforce the settlement agreement and prevails, it is entitled to attorney’s fees.^[27]Further, the Magistrate found that the plaintiff “made this request in passing, and in doing so, she failed to cite to a single authority (statute, rule, or otherwise) that would allow the Court to enter sanctions against Walmart under these circumstances.”^[28]Accordingly, Magistrate Elfenbein found that the plaintiff forfeited these issues and, thus, was not entitled to sanctions or attorney’s fees. ^[29]

Based on the above, the court enforced the settlement and directed Walmart to deliver the settlement check to the plaintiff on or before December 25, 2025, but denied sanctions and attorney’s fees.^[30]

How Verisk Can Help

As part of Verisk’s conditional payment services, we can help insurers and TPAs develop best practice protocols to help address Medicare conditional payment issues, which may help avert the type of issues experienced in the Smith case. We also offer a host of conditional payment services that can help you address CMS conditional payment claims, as well as Medicare Advantage and Part D lien claims. In addition, our popular CP Link^® program provides a proactive approach to Medicare recovery claims that leverages your Section 111 data to initiate the conditional payment process.

Through our experienced team, we consistently deliver extraordinary savings for our customers. For example, in 2024, our Medicare Advantage services delivered over $1.7 million in savings for our customers, while our CP Link program achieved over $160 million in conditional payment savings. To learn about our services and how we can help, see Verisk’s Medicare Conditional Payment Resource Center – Improving Compliance With Automated Data-Driven Solutions.

Please do not hesitate to contact the author if you have any questions regarding the Smith decision or Verisk’s Medicare recovery services.

[1] As more fully discussed below, the decision as released by Westlaw in Smith v. Wal-Mart Stores, East, LP, 25-CV-20228, 2025 WL 3720846 (S.D. Fla. Dec. 5, 2025) relates to the “Report and Recommendation” issued by Marty Fulgueira Elfenbein, United States Magistrate Judge on December 5, 2025. Subsequently, on December 22, 2025, the Honorable Beth Bloom, after conducting a de novo review of Magistrate Elfenbein’s recommendations, then entered an “Order Adopting Magistrate Judge’s Report and Recommendation” in their entirety without revision. aSmith v. Wal-Mart Stores, East, LP, Order Adopting Magistrate Judge’s Report and Recommendation, Case 1:25-cv-20228-BB, Document 59, (December 23, 2025).

[2] Smith v. Wal-Mart Stores, East, LP, 25-CV-20228, 2025 WL 3720846 (S.D. Fla. Dec. 5, 2025), at *1.

[3] Id.

[4] Smith v. Wal-Mart Stores, East, LP, 25-CV-20228, 2025 WL 3720846 (S.D. Fla. Dec. 5, 2025), at *3.

[5] It is important to note that even if an insurer establishes a protocol where it wants to assume responsibility for reimbursing the Medicare recovery claim as best practice, this does not guarantee that a plaintiff will agree to it, and there are no provisions in the MSP statute, regulations, or CMS guidance that compel the plaintiff to do so. Many times, especially in liability claims, it is standard practice for the plaintiff to assume responsibility for the lien claim. Regardless, this is a point that needs to be discussed and agreed upon as part settlement to avoid the type of issues that arose in Smith.

[6] Smith v. Wal-Mart Stores, East, LP, 25-CV-20228, 2025 WL 3720846 (S.D. Fla. Dec. 5, 2025), at *1.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Smith v. Wal-Mart Stores, East, LP, 25-CV-20228, 2025 WL 3720846 (S.D. Fla. Dec. 5, 2025), at *2.

[13] Id.

[14]Smith v. Wal-Mart Stores, East, LP, 25-CV-20228, 2025 WL 3720846 (S.D. Fla. Dec. 5, 2025), at *2. On this point, the court stated as follows: “In its Response, Walmart does not dispute that the Parties settled the case and does not take issue with Plaintiff’s recitation of the email that memorialized the Settlement Agreement. See ECF No. [38] at 1 (‘Although the parties reached a settlement on May 16, 2025, Plaintiff’s refusal to cooperate on a mutually agreeable release has prevented the parties from consummating a final settlement agreement.’). Instead, Walmart disagrees with Plaintiff’s recitation of the events that followed the settlement and blames Plaintiff for the Parties’ failure to agree on the language within the release. See generally ECF No. [38]. In large part, Plaintiff’s Reply focuses on — what she describes as — correcting the factual record regarding the Parties’ post-settlement communications. See generally ECF No. [38].” Id.

[15] Smith v. Wal-Mart Stores, East, LP, 25-CV-20228, 2025 WL 3720846 (S.D. Fla., Dec. 5, 2025), at *4.

[16] Smith v. Wal-Mart Stores, East, LP, 25-CV-20228, 2025 WL 3720846 (S.D. Fla., Dec. 5, 2025), at *2. On this point, the court stated: “In the Eleventh Circuit, federal courts rely ‘on state law principles in determining whether to enforce a settlement agreement.’ Hayes v. Nat’l Serv. Indus., 196 F.3d 1252, 1253 (11th Cir. 1999). Under Florida law, ‘[a] party seeking judgment on the basis of compromise and settlement has the burden of establishing assent by the opposing party[.]’ Carroll v. Carroll, 532 So. 2d 1109, 1109 (Fla. 4th DCA 1988) (quoting Nehleber v. Anzalone, 345 So.2d 822 (Fla. 4th DCA 1977)), rev. den., 542 So. 2d 1332 (Fla. 1989).”

[17] Smith v. Wal-Mart Stores, East, LP, 25-CV-20228, 2025 WL 3720846 (S.D. Fla., Dec. 5, 2025), at *2, citing Goff v. Indian Lake Estates, Inc., 178 So. 2d 910, 912 (Fla. 2d DCA 1965) (“Without a meeting of the minds of the parties on an essential element there can be no enforceable contract.” (footnote call number omitted)) Id.

[18] Smith v. Wal-Mart Stores, East, LP, 25-CV-20228, 2025 WL 3720846 (S.D. Fla. Dec. 5, 2025), at *3, citing Early v. Carnival Corp., No. 12-CV-020478, 2013 WL 462580, at *2 (S.D. Fla. Feb. 7, 2013) (citing Wilson v. Pacific Gulf Marine, Inc., No. 07–CV-60879, ECF No. 289, slip op. at 3 (S.D. Fla. Mar. 6, 2009)). Id.

[19] Smith v. Wal-Mart Stores, East, LP, 25-CV-20228, 2025 WL 3720846 (S.D. Fla. Dec. 5, 2025), at *3.

[20] Id.

[21] Id.

[22] Id.

[23]Smith v. Wal-Mart Stores, East, LP, 25-CV-20228, 2025 WL 3720846 (S.D. Fla. Dec. 5, 2025), at *3. On this point, it is interesting to note that Magistrate Elfenbein cited the U.S. Southern District of Florida’s 2012 decision in Bruton v. Carnival Corp., No. 11-CV-21697, 2012 WL 1627729. In this case, the court enforced a liability settlement agreement without a Medicare set-aside account when the parties had agreed to execute a general release with “’Medicare’ provisions’ but failed to specify the provisions or mention a Medicare set-aside account and there was no indication the parties had discussed that issue during negotiations or conditioned settlement on such a requirement.” Smith v. Wal-Mart Stores, East, LP, 2025 WL 3720846 at *3, citing Bruton, 2012 WL 1627729, at *2–3.

[24] Smith v. Wal-Mart Stores, East, LP, 25-CV-20228, 2025 WL 3720846 (S.D. Fla. Dec. 5, 2025), at * 4.

[25] Id.

[26] Id.

[27] Smith v. Wal-Mart Stores, East, LP, 25-CV-20228, 2025 WL 3720846 (S.D. Fla. Dec. 5, 2025), at * 4.

[28] Id.

[29] Smith v. Wal-Mart Stores, East, LP, 25-CV-20228, 2025 WL 3720846 (S.D. Fla. Dec. 5, 2025), at * 4. On this point, the court stated: “A movant ‘forfeits an issue when [she] raises it in a perfunctory manner without supporting arguments and authority.’ Harner v. Comm’r of Soc. Sec., 38 F.4th 892, 899 (11th Cir. 2022) (quotation marks and citation omitted); see also Singh v. United States Atty. Gen., 561 F.3d 1275, 1278 (11th Cir. 2009) (‘[A]n appellant’s simply stating that an issue exists, without further argument or discussion, constitutes abandonment of that issue and precludes our considering the issue on appeal.’) (citation omitted); Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1319 (11th Cir. 2012) (same). ‘It is not the job of the court to search through the record and make arguments for the parties.’ Broughton v. Crews, No. 15-CV-22925, 2016 WL 4628051 (S.D. Fla. Jan. 28, 2016), R&R adopted, No. 15-CV-22925, 2016 WL 4625616 (S.D. Fla. Sept. 6, 2016); see also, Chavez v. Sec’y Fla. Dep’t of Corr., 647 F.3d 1057, 1061 (11th Cir. 2011) (‘With a typically heavy caseload and always limited resources, a district court cannot be expected to do a petitioner’s work for him.’). Accordingly, Plaintiff’s request for sanctions in the form of attorney’s fees should be denied.” Id.

[30] Smith v. Wal-Mart Stores, East, LP, Order Adopting Magistrate Judge’s Report and Recommendation, Case 1:25-cv-20228-BB, Document 59 (December 23, 2025).