Vinzant v. Hillcrest Medical Center , 609 P.2d 1274 ( 1980 )

OPALA, Justice,

concurring in part and dissenting in part:

I concur in the court’s decision which holds a lawyer’s charging lien superior to the statutory hospital lien. I dissent from that part of the opinion which appears to state that settlement proceeds disbursed by an insurance company to a lawyer with an actual statutory notice of the hospital’s filed lien claim do not stand impressed, while in his/her hands, with a lien that is superior to the client’s net recovery rights.

My view of 42 O.S. 1971 §§ 43 and 44, the pertinent statutes in force when the hospital lien was filed August 3, 1976, is that once the lien has attached when settlement is effected and its proceeds may be identified as a separate fund, it remains impressed thereon when transfer is effected to the lawyer with notice of the hospital’s filed lien claim. This is so because while the hospital lien claim is inferior to that of the lawyer’s charging lien it is superior to the client’s claim for net recovery. It matters not that the insurer here failed to protect the lien claim by omitting to include the hospital as a payee upon its initial draft to the lawyer and his client. The lien remained impressed, nonetheless, in the hands of the lawyer. When a lawyer disburses— as it was done here — a portion of the client’s net recovery knowing full well that the entire settlement, less counsel fees and the amount of the hospital lien, would leave no net recovery to the client, the lawyer waives his charging lien pro tanto. This reasoning finds support in the clear language of the statute, §§ 43 and 44, as well as in Sisters of Charity of Providence of Montana v. Nichols, 483 P.2d 279 [Mont.1971].

Because my views would bring about a sharp break from past practices and inasmuch as the legislative language used in §§ 43 and 44 imparts to lawyers but scant notice of the hospital lien statute’s intended effect upon the client’s net recovery while it remains in the hands of his/her lawyer, I would allow the trial court’s judgment in this case to stand undisturbed. I would make our pronouncement applicable prospectively to those hospital liens which shall have been filed after the decision herein becomes final. American-First Title and Trust Company v. Ewing, Okl., 403 P.2d 488, 496 [1965]; Poafpybitty v. Skelly Oil Company, Okl., 394 P.2d 515, 519-520 [1964],