HELENA (AP) - Donald and Darlene Robinson spent all their money to treat Donald's tobacco-related illnesses before he died in 1994. Now, Mrs. Robinson wants some of the money Montana is getting in a multi-state settlement with tobacco companies.

The Montana Supreme Court will hear arguments April 23 over whether a district judge was correct in throwing out Robinson's claim last August. The lawsuit, filed in 1997, contends certain victims of tobacco-caused diseases deserve a share of the payments made to the state. The state argues that no such pieces of the pie must be doled out to any individuals. Robinson, who continues to live in Manhattan since her husband's death to lung cancer, filed the suit on behalf of her late husband and other Medicaid recipients with tobacco-related illnesses. The Robinsons spent their life savings on health care for Donald, leaving themselves indigent and eligible for Medicaid. But to qualify for the federal-state health insurance program, they had to surrender to the state their claims contained in a suit they had filed against tobacco manufacturers in 1992. In suing the state, Robinson has said that the state abandoned that and similar claims when it reached a settlement with the tobacco industry in 1998. That agreement is expected to provide Montana with about $922 million over 25 years. Last August, District Judge Thomas Honzel of Helena dismissed Robinson's lawsuit. He concluded her claim against cigarette makers was not included in Montana's settlement with the industry because the state's complaint against the tobacco industry was not filed on behalf of the Robinsons, or any Medicaid recipients. Honzel said nothing in the tobacco settlement prevents Robinson, and others in her situation, from pursuing legal action against the manufacturers. In appealing to the high court, Robinson's attorney said that is not true. The wording of the settlement abolished all claims - such as Robinson's - that had been assigned to the state, said Michael Wheat, a Bozeman lawyer. "Clearly the state was seeking to recover health care expenses of Medicaid recipients, like Mr. Robinson, who suffered with tobacco-related illnesses," he told the Supreme Court in his brief. He said state law requires any part of the tobacco settlement money that exceeds a state's Medicaid costs must be paid to injured smokers. In suing tobacco makers, Wheat recalled, the state talked about its obligation and responsibility to provide medical care for the needy who suffered the ill effects of tobacco use and were unable to care for themselves. "But after settling with the tobacco manufacturers and releasing all past and future claims for medical expenses on behalf of Medicaid recipients, the state has turned its back on those same poor, indigent and needy citizens who also had to expend their much more limited resources on medical care, and have a statutory right to be reimbursed from the settlement proceeds," Wheat said. But Chris Tweeten, chief counsel for Attorney General Mike McGrath, said settlement of the tobacco suit did not affect claims, such as the one Robinson had against tobacco makers. The agreement ended only those claims that the state could have brought against the companies, he said. The Robinsons' claim, if upheld, "would create a huge unearned windfall for a small class of Medicaid recipients," Tweeten told the court. The tobacco settlement was not intended to recover money spent by Medicaid recipients on tobacco-related health care, he said. Rather, it was meant to prevent tobacco companies from marketing their products to children and to compensate states for money spent as a result of tobacco use by citizens, he said.

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