v. Boulder Community Health

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
August 23, 2018
2018COA126
No. 17CA0741, Marchant v. Boulder Community Health —
Creditors and Debtors — Hospital Liens — Lien for Hospital
Care
A division of the court of appeals considers whether the
hospital lien statute, section 38-27-101, C.R.S. 2017, provides an
injured person the right to sue for twice the amount of an improper
hospital lien upon the damages payable to her for her injury even if,
prior to suit, the lien met the requirements set forth in the statute.
The division concludes that the General Assembly intended for the
statutory penalty to apply only to lien violations existing at the time
a complaint is filed. Because the plaintiff filed suit after the
hospital had met the requirements set forth in the hospital lien
statute, the division affirms summary judgment in favor of the
hospital.
COLORADO COURT OF APPEALS 2018COA126
Court of Appeals No. 17CA0741
Boulder County District Court No. 16CV30445
Honorable Thomas F. Mulvahill, Judge
Jean Marchant, as guardian of Krista Marchant,
Plaintiff-Appellant,
v.
Boulder Community Health, Inc.; and Cardon Outreach, LLC, a foreign
corporation,
Defendants-Appellees.
JUDGMENT AFFIRMED
Division III
Opinion by JUDGE MÁRQUEZ*
Webb and Fox, JJ., concur
Announced August 23, 2018
Bold, Educated Lawyering LLC, Thomas D. Russel, Denver, Colorado, for
Plaintiff-Appellant
Hall & Evans, L.L.C., Alan Epstein, Denver, Colorado, for Defendants-Appellees
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
¶1 Plaintiff, Jean Marchant, as guardian of Krista Marchant,
appeals the summary judgment in favor of defendants, Boulder
Community Health, Inc. (BCH), and Cardon Outreach, LLC
(Cardon), regarding her right to seek damages of twice the amount
of a hospital lien filed in violation of section 38-27-101, C.R.S.
2017, (the hospital lien statute) against her daughter. We affirm.
I. Background
¶2 The record shows the following undisputed facts. Krista
Marchant, plaintiff’s daughter, was struck by an automobile and
received medical treatment from BCH in November 2015, for which
BCH billed $27,681.10. Cardon, as an agent for BCH, filed with the
Colorado Secretary of State a statutory lien in that amount “upon
the net amount payable to [daughter], . . . or [her] legal
representatives . . . as damages on account of such injuries,” on
December 10, 2015, without first billing the daughter’s insurance
company.
¶3 On February 10, 2016, BCH made an insurance “adjustment”
to reduce the bill by $19,903.99 and billed daughter’s medical
insurance company, Blue Cross Blue Shield (BCBS), the next day.
BCBS paid $6999.37 on February 23, leaving a balance of $777.74.
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¶4 On March 17, Cardon amended the lien to $777.74, the
remaining balance of daughter’s medical charges. The parties agree
that plaintiff filed a complaint against BCH and Cardon on April 19,
while the lien for $777.74 was in effect, but this complaint is not
part of the appellate record. Plaintiff paid $777.74 on April 30, and
Cardon released the lien on May 11, 2016. Later, plaintiff filed an
amended complaint, asserting, as relevant to this appeal, a claim
for violation of the hospital lien statute against BCH and Cardon.
¶5 In response to cross-motions for determinations of a question
of law under C.R.C.P. 56(h), the district court ruled, as a matter of
law, that section 38-27-101(7) “only provides standing” for a lawsuit
if the plaintiff “‘is subject to’ an improper lien at the time he or she
files the legal action,” and “does not allow an individual to file a
damages lawsuit . . . where the claim arises out of an improper lien
filing which has been cured prior to filing.” Based on this
interpretation, the court granted defendants’ motion for summary
judgment.
A. The Hospital Lien Statute
¶6 Before August 5, 2015, the hospital lien statute provided that
hospitals “shall . . . have a lien for all reasonable and necessary
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charges for hospital care upon the net amount payable to [a person
injured by another person’s negligence or wrongful acts], . . . as
damages on account of such injuries.” § 38-27-101, C.R.S. 2014.
¶7 However, the General Assembly significantly amended the
statute, and the amendment became effective on August 5, 2015,
before daughter’s injury. Ch. 260, sec. 1, § 38-27-101, 2015 Colo.
Sess. Laws 981-83. The amended hospital lien statute provides, as
relevant here, as follows:
(1) Before a lien is created, every hospital . . .
which furnishes services to any person injured
as the result of the negligence or other
wrongful acts of another person and not
covered by [Workers’ Compensation], shall
submit all reasonable and necessary charges
for hospital care or other services for payment
to the property and casualty insurer and the
primary medical payer of benefits available
to . . . the injured person, in the same manner
as used by the hospital for patients who are
not injured as the result of negligence or
wrongful acts of another person, . . . .
....
(7) An insured person who is subject to a lien in
violation of this section may bring an action in
a district court to recover two times the
amount of the lien attempted to be asserted.
§ 38-27-101, C.R.S. 2017 (emphasis added).
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B. Procedural Background
¶8 Following the trial court’s interpretation of the amended
statute, defendants moved for summary judgment, arguing that
because the lien had been cured — it was no longer an improper
lien — before plaintiff’s lawsuit, and there were no disputed issues
of fact, they were “entitled to a dismissal.” Plaintiff responded that
the improper lien was incapable of cure and that defendants’
proffered facts were in dispute. She also moved for summary
judgment, arguing for a different interpretation of the hospital lien
statute. As noted, the court granted defendants’ motion.
¶9 On appeal, plaintiff makes numerous arguments revolving
around only one contention: the court misinterpreted the hospital
lien statute. She does not dispute any material facts.
II. Standard of Review and Applicable Law
¶ 10 We review de novo questions of statutory interpretation,
Jefferson Cty. Bd. of Equalization v. Gerganoff, 241 P.3d 932, 935
(Colo. 2010), and orders granting summary judgment, Ryder v.
Mitchell, 54 P.3d 885, 889 (Colo. 2002).
¶ 11 “Our primary duty in construing statutes is to give effect to the
intent of the General Assembly, looking first to the statute’s plain
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language.” Vigil v. Franklin, 103 P.3d 322, 327 (Colo. 2004). In
construing the plain meaning of the language, we give effect to every
word and consider the statute as a whole. Waste Mgmt. of Colo.,
Inc. v. City of Commerce City, 250 P.3d 722, 725 (Colo. App. 2010).
We construe words and phrases “according to grammar and
common usage.” Gerganoff, 241 P.3d at 935. If the statutory
language is clear and unambiguous, we will not resort to any other
tools of statutory construction, and we must apply the statute as
written. Vigil, 103 P.3d at 328.
¶ 12 But if the statutory language is ambiguous — capable of being
reasonably understood in two or more ways — we may rely on other
factors, such as the legislative history, the consequences of a given
construction, and the heading of the statute to aid in determining
the General Assembly’s intent. See Gerganoff, 241 P.3d at 935.
¶ 13 If, in light of our de novo interpretation of the statute, the
pleadings and supporting documentation demonstrate that no
genuine issue of material fact exists and the moving party is
entitled to judgment as a matter of law, summary judgment is
appropriate. C.R.C.P. 56(c); Amos v. Aspen Alps 123, LLC, 2012 CO
46, ¶ 13.
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III. Discussion
¶ 14 The parties agree that when BCH first filed its lien, BCH had
not billed BCBS, and thus the lien violated the hospital lien
statute.1 If plaintiff had sued at that time, the statute would have
provided plaintiff grounds to seek twice the amount of the lien—
$55,362.20.
¶ 15 The need for statutory interpretation arises because plaintiff
did not file suit until after BCH had adjusted the amount due and
billed BCBS, just as it would for “patients who are not injured as
the result of the negligence or wrongful acts of another person.”
§ 38-27-101(1). We must determine whether a claim for relief
attaches at the moment a lien is filed or when plaintiff files a
complaint.
¶ 16 We construe the language in section 38-27-101(7), “[a]n
injured person who is subject to a lien in violation of this section may
bring an action in a district court” (emphasis added), according to
grammar and common usage. See Gerganoff, 241 P.3d at 935. The
1 Plaintiff also asserts that the lien was improper because it was for
an amount greater than that allowed by BCH’s contract with BCBS.
Even if we agree, our analysis for the overall failure to bill prior to
lien creation addresses this assertion because BCH had billed
BCBS an adjusted amount before plaintiff sued.
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permissive word “may,” in conjunction with the temporal word “is,”
indicates that the statute applies only to liens affecting a plaintiff
when she chooses to sue. See Sifton v. Stewart Title Guar. Co., 259
P.3d 542, 544 (Colo. App. 2011) (collecting cases; finding no
authority to support the proposition that present tense language
applies to past events).
¶ 17 Had the General Assembly intended to make a remedy
available for liens that had previously violated the statute, it could
have used mandatory language such as “shall be entitled” instead
of “may bring an action.” And it could have stated “has been
subjected” rather “is subject.” But it did neither. We conclude,
based on the plain language of the statute, that the General
Assembly intended the claim for relief to attach at the time a
complaint is filed. See Gerganoff, 241 P.3d at 935.
¶ 18 Even if plaintiff asserted a violation of the hospital lien statute
in her original complaint,2 she was no longer subject to a lien that
violated the statute at that time. When plaintiff filed, BCH had
2 We are unable to review the original complaint because plaintiff
did not designate it as part of the record. We generally presume
that material portions omitted from the record would support the
district court’s judgment. People v. Wells, 776 P.2d 386, 390 (Colo.
1989).
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complied with section 38-27-101(1) for the filing of a hospital lien.
Specifically, BCH had billed BCBS “in the same manner [as it would
for] patients who are not injured as the result of the negligence or
wrongful acts of another person,” § 38-27-101(1); had adjusted the
balance based on payment by BCBS; and had amended the lien to
reflect only the remaining charges. For these reasons, the lien was
not then in violation of the statute, and we conclude that the
statute does not permit plaintiff to seek damages.
¶ 19 We are not persuaded otherwise by plaintiff’s policy arguments
that the General Assembly could not have intended our
interpretation because such an interpretation “creates races to the
courthouse” and allows hospitals to evade liability by amending or
withdrawing a lien before a plaintiff sues. See State Farm Mut. Auto.
Ins. Co. v. Fisher, 2018 CO 39, ¶ 26 (“[W]e think such public policy
arguments would be better directed to the legislature.”). Nor are we
persuaded by plaintiff’s argument that the legislative history
supports only her interpretation. When a statute’s plain language
is clear and susceptible of only one reasonable interpretation, the
statute must be applied as written. Smith v. Jeppsen, 2012 CO 32,
¶ 14.
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¶ 20 We do not address plaintiff’s argument — raised for the first
time in her reply brief — that because the amended statute provides
a penalty, we should construe it in her favor. See Flagstaff Enters.
Constr. Inc. v. Snow, 908 P.2d 1183, 1185 (Colo. App. 1995)
(refusing to consider an argument raised for the first time in a reply
brief).
IV. Conclusion
¶ 21 We affirm the district court’s judgment.
JUDGE WEBB and JUDGE FOX concur.
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