concurring.
[¶ 36] I concur with the results reached by the majority. Accordingly, I would affirm the trial court’s summary judgment in favor of the Department of Human Services on its claim for conversion against Delano Grey Bear, and would reverse the trial court’s judgment against Robert V. Bolinske. I write separately since I respectfully 'disagree with the conclusion set forth by the majority-in section II, ¶ 14, that “the assignment under N.D.C.C. § 50-24.1-02.1 gives the Department the right to recover any settlement received by Grey Bear, even if designated for pain and suffering ...”
[¶ 37] The majority interprets the statute as giving the Department the right to recover “any settlement received” by Grey Bear. I interpret the statute as giving the Department the right to recover “any third-party settlement Grey Bear received as payment or reimbursement for medical costs.” I disagree with the majority’s broad reading of the statute that the applicant or recipient assigns to the Department any right of recovery the applicant may have to recover any settlement, even if designated for pain and suffering. I agree with Grey Bear that the phrase “for medical costs incurred” modifies the preceding language in the statute. The majority disagrees that the words “medical costs incurred” modify the preceding part of N.D.C.C. § 50-24.1-02.1. The majority interprets the phrase “for medical costs incurred” with the remaining part of the sentence- and thus concludes the statute as a whole requires the applicant or recipient must be deemed to have assigned to the Department the right to recover “any settlement received” by the applicant. That right of recovery, according to the majority, allows the Department the right to recover any settlement received by Grey Bear, even if designated for pain and suffering and only limits the recovery to the amount of funds expended by the Department for the care and treatment of the applicant or recipient.
[¶38] I do agree that the plain language of the last portion of the first sentence in N.D.C.C. § 50-24.1-02.1 does limit the recovery by the Department to the amount of funds expended by the Department for the care and treatment of the applicant or recipient. However, I disagree with the majority’s interpretation that the phrase “for medical costs incurred under this chapter” does not define the *623limit of the assignment given by the applicant or recipient to the Department. I believe it does limit the assignment and that such an interpretation is consistent with language in the federal statutes as well. As noted by the majority in ¶ 8, 42 U.S.C. § 1396k(a) provides for states to require medical assistance payment recipients to assign to the state any rights they have for reimbursement or payment for medical care from any third party. I agree with the reasoning set forth in the cases cited by the majority in ¶ 11 but not followed by the majority. See Martin v. City of Rochester, 642 N.W.2d 1 (Minn.2002) and Arizona Health Care Cost Containment System v. Bentley, 187 Ariz. 229, 928 P.2d 653, 656 (1996). I believe the majority’s interpretation of the statute is too broad. The right of recovery should be limited to recoveries the recipient receives for medical care or medical costs from any third party.
[¶ 39] In summary, I cannot equate amounts given for pain and suffering to an injured person by a third party to be a right of recovery for medical costs or medical care incurred. Pain and suffering do not equate to medical costs or medical care. Thus, those amounts recovered for pain and suffering are not, in my interpretation of the statute, covered by the assignment given in N.D.C.C. § 50-24.1-02.1.
[¶ 40] Given my interpretation of the statute, a remand to the trial court for a determination of what portion of the settlement proceeds constituted payment or reimbursement for medical costs incurred by Grey Bear would seem appropriate. However, since I agree with the majority that the trial court’s granting of summary judgment in this case was appropriate, a remand is unnecessary. A party resisting summary judgment must present competent evidence which raises a disputed issue of material fact. Although a party seeking summary judgment bears the initial burden of establishing there are no genuine issues of material fact, a party resisting the summary judgment may not simply rely upon the pleadings or upon unsupported conclusory allegations. Hougum v. Valley Memorial Homes, 1998 ND 24, ¶ 8, 574 N.W.2d 812. The resisting party must present competent admissible evidence by affidavit or other similar means which raises a disputed issue of material fact and must, if appropriate, draw the Court’s attention to relevant evidence in the record by setting out the page and line in depositions or other documents containing evidence raising an issue of material fact. Id. It is presumed the evidence does not exist, if no evidence raising a disputed issue of material fact is presented. Id.
[¶ 41] In this case, the Department moved for summary judgment on the Department’s counterclaim that it was entitled to the full amount of any recovery Grey Bear receives from a third party for damages up to the total amount of Medicaid benefits furnished to him. Grey Bear submitted no opposing affidavit or other evidence establishing how much, if any, of the settlement proceeds in this case were for pain and suffering rather than medical costs incurred. Accordingly, there being no disputed issue of material fact on that issue, I agree that it was proper for the trial court to grant summary judgment as a matter of law in favor of the Department.
[¶ 42] Other than my disagreement with the majority regarding the conclusion that the assignment under N.D.C.C. § 50-24.1-02.1 gives the Department the right to recover any settlement received by Grey Bear, even if designated for pain and suffering, I agree with the reasoning set forth by the majority in the conclusions *624reached in sections III through VI and the results set forth in section VII,
[¶ 43] JAMES M. BEKKEN, D.J„ and MARY MUEHLEN MARING, J., concur.