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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