ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLE:
DANIEL S. TANKERSLEY CHRISTINE M. STACH
Winamac, Indiana SUSAN E. TRENT
DENNIS F. DYKHUIZEN
Rothberg Logan & Warsco LLP
Fort Wayne, Indiana
KEVIN C. TANKERSLEY, ) ) Appellant (Defendant below ), ) Supreme Court Cause No. ) 02S03-0207-CV-00396 v. ) ) Court of Appeals Cause No. PARKVIEW HOSPITAL, INC., ) 02A03-0106-CV-184 ) Appellee (Plaintiff below ). )
Phillips incurred some $39,000 in medical expenses while at Parkview. Parkview filed
a claim for payment with Sagamore Insurance Company, which was denied outright.
On July 2, 1998, Parkview Hospital then filed a hospital lien in the
Allen County Recorders Office against Phillips for outstanding unpaid bills. Parkview served
Phillips, his wife, another person involved in the accident, the tortfeasor and his
insurance company, and attorney Isaacs, and it mailed a copy of the lien
to the insurance company, all on July 6th. (Appellant App. at 119,
Unbeknownst to Parkview, Phillips had changed lawyers in the meantime. He signed a fee agreement with attorney Kevin Tankersley on July 1, 1998. By July 27th, Parkviews attorneys had notice that Isaacs was no longer Phillips lawyer.
Tankersley requested a copy of Phillips personal injury file from Isaacs. Tankersley
later sent a second request for Phillips file and learned that Isaacs was
no longer employed at Glaser and Ebbs. Another attorney, Gregg Smith, agreed
to forward the file to Tankersley. Smith sent portions of the file
and later informed Tankersley that he was still collecting information to send, but
never sent the complete file.
Despite repeated attempts, Tankersley never recovered the entire file. The portion of
the file that Tankersley received did not contain a notice of the lien.
Since he asserted that he did not know of the hospital lien
statute, Tankersley did not research the Allen County Recorders Office for any outstanding
On July 23, 1999, Tankersley settled Phillips personal injury claim against the tortfeasor
with Mid-Century Insurance Company for $35,000. The proceeds went to Tankersley, who
retained his contingency fee of $8,000 and distributed the remainder to Phillips.
The hospital lien was not paid, and Phillips had outstanding medical bills that
exceeded $80,000. At the time of remittance, Tankersley did not have actual
knowledge of the hospital lien. Parkview initiated suit against Tankersley, Phillips, and
the insurance company. Phillips eventually discharged his debt through bankruptcy.
Mid-Century settled with Parkview for $15,000 and was dismissed from the action.
The trial court subsequently granted Parkviews motion for partial summary judgment against attorney
Tankersley on the issue of liability. The Court of Appeals reversed.
It held that Parkview failed to perfect its lien, and Tankersley did not
have actual or constructive notice of the lien.
See Tankersley v. Parkview
Hospital, 761 N.E.2d 886, 890-91 (Ind. Ct. App. 2002). It reasoned the
hospital lien places the burden and the risk of loss on the hospital,
not the attorney, to ensure the lien is perfected. See id. at
890. We granted transfer.
Standard of Review.
When reviewing a grant of summary judgment, we use
the same standard as the trial court: whether the pleadings and evidence
demonstrate that there are no genuine issues of material fact and that the
moving party is entitled to judgment as a matter of law. Ambassador
Fin. Servs. v. Indiana Natl Bank, 605 N.E.2d 746 (Ind. 1992); Ind. Trial
R. 56(C). We construe the pleadings, affidavits, and designated materials in a
light most favorable to the non-movant, Miller by Miller v. Memorial Hospital of
South Bend, Inc., 679 N.E.2d 1329 (Ind. 1997), and give careful scrutiny to
assure that the losing party is not improperly prevented from having its day
in court. Landmark Health Care Assoc. L.P. v. Bradbury, 671 N.E.2d 113
(Ind. 1996). The party moving for summary judgment must shoulder the burden
of establishing the lack of a material factual issue. Cowe v. Forum
Group Inc., 575 N.E.2d 630 (Ind. 1991).
Ind. Code Ann. § 32-8-26-4(b) (emphasis added).
We properly subject a de novo analysis of review to questions of law and owe no deference to the trial courts determinations of such questions. Anthem Insurance Companies, Inc. v. Tenet Healthcare Corporation, 730 N.E.2d 1227 (Ind. 2000). An unambiguous statute must be held to mean what it plainly expresses, and its plain and obvious meaning may not be enlarged or restricted. Indiana Department of State Revenue v. Horizon Bancorp, 644 N.E.2d 870 (Ind. 1994). Nothing may be read into the statute that is not within manifest intention of the legislature as gathered from the statute itself. Id.
The underlying purpose of the act is to [e]nsure that hospitals are compensated
for their services.
National Insurance Association v. Parkview Memorial Hospital, 590 N.E.2d
1141, 1144 (Ind. Ct. App. 1992). Where the settlement is insufficient to
pay all interested parties, however, the statute provides that attorney fees will be
paid first and the liens must be reduced on a pro rata basis
to the extent that will permit the patient to receive twenty percent (20%)
of the original settlement proceeds of the settlement amount. Community Hospital v.
Carlisle, 648 N.E.2d 363, 365 (Ind. Ct. App. 1995).
Another purpose of the Hospital Lien Act is to provide notice of the
lien to attorneys.
Stephens v. Parkview, 745 N.E.2d 262, 266 (Ind. Ct.
App. 2001). Tankersley contends that an attorney could not be held personally
liable for violating the Hospital Lien Statute. He further states that if
an attorney is held liable, the hospital lien is inferior to all claims
for attorney fees under Ind. Code Ann. § 32-8-26-2, and the patient must
receive at least twenty percent (20%) of the settlement under Ind. Code Ann.
§ 32-8-26-3. Tankersley supports this argument with Carlisle, 648 N.E.2d at 365,
in which the Court of Appeals observed that the effort of a claimants
lawyer frequently benefits the hospital. The hospital in Carlisle had argued that
it should be paid in full before the lawyer received fees. The
Court of Appeals held that the hospitals lien was subject to the share
of the attorneys fees.
Just as the hospital was wrong in contending that all of its debt
got paid first, Tankersley is wrong that a holder of the funds subject
to a hospital lien may dispense them without regard to the lien.
As Phillips legal representative, Tankersley was responsible to pay the lien before dispensing
any funds to Phillips and himself.
Tankersley argues even if he is responsible for a portion of the proceeds, attorneys fees precede the lien, and Phillips is entitled to at least twenty percent (20%) of the settlement. We will direct the trial court on remand to examine this contention in light of todays decision.
A properly perfected hospital lien serves the world on notice of a hospitals
direct right to settlement or judgment. Ind. Code Ann. § 32-8-26-4(c) (Michie
1995). Indiana Code Ann. § 32-8-26-4(b)(2) requires the hospital to send a
copy of the lien by registered mail to the
attorney representing the patient
if the name of the attorney is known or with reasonable diligence could
be discovered by the hospital. At the time the hospital filed its
lien and sent copies, it thought that Isaacs was the attorney because he
handled previous issues with Phillips on the personal injury claim in dispute.
Isaacs apparently had been Phillips attorney until just the day before the filing.
While other facts might suggest the need for the hospital to search
for a new attorney when it previously corresponded with one attorney as the
legal representative, we conclude that Parkview perfected its lien for medical treatment rendered
Parkviews lien was not rendered invalid because it did not later send another copy to Tankersley when it became aware that Isaacs was no longer Phillips attorney. The statute requires the hospital to give notice to the current attorney, not subsequent or future legal representatives. To place such a burden on the hospital exceeds the scope of the statute.
Moreover, the object of regimes for recording liens in a public office is
to provide notice to persons who did not receive an actual copy or
who enter the scene after the pertinent mechanical events have been completed.
As Judge Mattingly-May observed, attorneys representing personal injury plaintiffs who have received medical
treatment at a hospital would customarily expect that the recorders office in the
county where the hospital is located will reflect the existence of a lien.
Parkview, 761 N.E.2d at 892 (concurring opinion). We therefore find that
Tankersley had constructive knowledge and that the lien is effective against him.
SULLIVAN and BOEHM, JJ., concur.
DICKSON, J., dissents with separate opinion in which Rucker, J. concurs.
DICKSON, Justice, dissenting
I dissent, believing that the Court of Appeals was correct. See Tankersley v. Parkview Hospital, Inc., 761 N.E.2d 886, 890-91 (Ind. Ct. App. 2002).
The majority opinion today acknowledges that "[a]n unambiguous statute must be held to mean what it plainly expresses, and its plain and obvious meaning may not be enlarged or restricted." Maj. slip opin. at 6. That is precisely what the Court of Appeals did.
The Hospital Lien Act applicable to this case provided that the filing of a lien by a hospital:
is notice to all persons, firms, limited liability companies, or corporations who may be liable because of the illness or injury if those persons, firms, limited liability companies, or corporations:
(1) receive notice under subsection (b);
(2) reside or have offices in a county where the lien was perfected or in a county where the lien was filed in the recorder's office as notice under this subsection; or
(3) are insurance companies authorized to do business in Indiana under IC 27-1-3-20.
Ind. Code § 32-8-26-4(c) (1998) (current version at I.C. § 32-33-4-4(c)(Supp. 2002)). But Parkview did not send any notice to Tankersley, and he did not receive any notice. Tankersley and his firm are located in Pulaski County, not Allen County where the lien was filed, and Tankersley is not an insurance company. As a result, Parkview's lien did not constitute notice to Tankersley who had no actual knowledge of the lien. Applying the plain language of the statute, Parkview's lien was not effective as to Tankersley.
Because Parkview failed to perfect its lien as to Tankersley, I believe that
Parkview is not entitled to summary judgment.
RUCKER, J., concurs.